On 21 January 2016, our Senior Consultant Mr. Angus Forsyth, Partner Ms. Lai Lam and Senior Associate Mr. Samson Wong attended the 2015 AllBright Intellectual Property Committee Annual Meeting and Symposium in Shanghai, where Mr. Angus Forsyth delivered an extensive and informative PowerPoint presentation on the operations of Uber HK which was very well received by the attendees, including Yang Jun of the United Assets and Equity Exchange, Rui Wenbiao, the Deputy Director General of Shanghai Intellectual Property Administration and all the legal practitioners who attended the symposium.

At the symposium, the attendees explored and shared their views on the recent developments in the intellectual property field. Mr. Chen Naiwei also took the opoprtunity to introduce the new Committee members as well as reporting on the Committee’s work in 2015 and devising its future plan for 2016.

Please contact our Mr. Forsyth, Ms. Lam or Mr. Wong for any enquiries or further information about this event.

On 15 January 2016, our partners Mr. Eric Lui, Ms. Heidi Chui, associate Ms. Karman Fung and trainee solicitor Mr. Jensen Chang delivered a seminar on the Competition Ordinance (Cap. 619) at the Hong Kong branch of China Everbright Bank. Our team explained how the Ordinance, which came into force on 14 December 2015, may impact the banking industry.

In relation to the First Conduct Rule which covers agreements and concerted practices between undertakings, our speakers explained to the participants that common banking practices which were lawful in the past may now violate the law, in particular the exchange of strategic business information with other banks. In light of the suspension by the Hong Kong Association of Banks of certain sections of the Code of Banking Practice, our team analysed why they may potentially be caught by the First Conduct Rule as well as the possible effect of the suspension on the concerned banking services.

The application of the Second Conduct Rule to the banking industry was also addressed. Examples of the enforcement dimension of the Ordinance, including dawn raids, the leniency policy and actions bankers should take in order to avoid violation of competition law were given.

During the seminar, participants raised questions and engaged in enthusiastic discussions regarding exchange of information with competitors and powers of the Competition Commission.

Photograph of Mr. Lui (second from left), Ms. Chui (second from right), Ms. Fung (on the right), Mr. Chang (on the left), and Mr. Zachary Xin (in the middle), Head of Legal and Director, Hong Kong branch of China Everbright Bank

Contact persons: Mr. Eric Lui, Ms. Heidi Chui

In Wu Yim Kwong Kingwind v Manhood Development Ltd [2015] HKEC 1475, the Court imposed an adverse costs order against a party for its unreasonable refusal to attempt mediation.

The plaintiff (“P”), losing the trial, was ordered to pay 80% of the costs of the defendant (“D”). P sought to vary the costs order for the reason that D unreasonably refused to mediate.

D argued that since the subject matter of the dispute was land, it was impossible for them to compromise. Further, it was argued that P was not cooperative in agreeing on costs related to the interlocutory proceedings and had not made any settlement offer.

The Court held in favour of P and made an adverse costs order against D. The Court did not see the nature of the claim being land would keep the parties from compromising. Despite P being uncooperative, it did not mean that D could be the same. Further, even though P did not make any settlement offer, negotiation should be mutual and it was found that D did not make any offer either. Lastly, the Court pointed out that negotiations should not be seen as a replacement for mediation.

This decision indicates what the Court considers to be unreasonable excuses to refuse mediation and the possible consequences of such unreasonable refusals regardless of winning or losing at the trial.

Our partners Mr. Eric Lui and Ms. Heidi Chui have been appointed by the Ministry of Justice P.R.C. (the “MOJ”) as part of the 11th batch of China Appointed Attesting Officers and attended the awards ceremony organized by the MOJ held at Zhuhai Holiday Resort Hotel on 7 January 2016.

Newly appointed Attesting Officers were greeted by Mr. Zhao Dacheng, Vice Minister of the MOJ, as well as other representatives from relevant departments and were presented with their certificates of appointment.

Mr. Lui and Ms. Chui with their certificates of appointment

Following the ceremony, the newly appointed Attesting Officers attended a gala luncheon organized by the MOJ.

On 23 December 2015, our partner Mr. Eric Lui attended a legal forum in Jinan which focused on corporate finance matters. More than 70 corporate lawyers from the Shangdong province attended the forum.

Mr. Lui delivered a presentation titled “The key points for overseas IPOs and Merger and Acquisitions transactions”. The presentation covered the basic requirements for listing in Hong Kong, reorganisation of red-chip companies and stamp duty implications for M&A deals.

Please contact our Mr. Eric Lui for any enquiries or further information about this event.

On 11 November 2015, the Court of Final Appeal (CFA) allowed the appeal in Kam Leung Sui Kwan, Personal Representative of the Estate of Kam Kwan Sing, The Deceased v Kam Kwan Lai (FACV 4/2015), and ordered to wind up Yung Kee Holdings Limited (the Company), a company incorporated in the British Virgin Islands (BVI) and the ultimate holding company of the Yung Kee Restaurant.

During his lifetime, the late Mr Kam Kwan Sing (the older brother) accused Mr Kam Kwan Lai (the younger brother) of arrogating power to himself, which is contrary to the intention of their father, the late Kam Shui Fai (the founder of the Restaurant), to allow the brothers to co-manage the Restaurant. As such, in 2010 the older brother initiated proceedings in the Hong Kong court to wind up the Company. Both the Court of First Instance and Court of Appeal ruled that, since the Company is registered overseas, the Hong Kong court has no jurisdiction over the dispute. The older brother’s widow, Madam Kam Leung Siu Kwan, appealed to the CFA on his behalf.

Since the shareholders of the Company and its subsidiaries are based in, the businesses are located in, the income are generated in, and the events that led to the dispute occurred in Hong Kong, pursuant to section 327(c) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap.32), the CFA took the view that the Company satisfies the requirement of a sufficient connection with Hong Kong, such that the Hong Kong court has jurisdiction to hear the petition. The CFA endorsed the trial judge’s view that there existed a mutual understanding that each brother was entitled to participate in the business and had to be properly consulted. The breach by the younger brother of such understanding, which is contrary to the founder’s intention, prevented the old brother from managing the business. As a result, the CFA concluded that it is just and equitable to wind up the Company.

Meanwhile, the CFA ordered that the winding up order be stayed for 28 days to allow the parties to agree the terms on which the older brother’s shares in the Company might be purchased in the event that agreement could be reached. On 9 December, the parties agreed to apply for a 7-day extension in order to reach a consensus on the purchase price. If no such agreement is concluded before the deadline, the Company will be wound up automatically.