News & Events

John Reading SC and Lawrence Ng of Pacific Chambers represented a female police officer who was charged with four counts of shop theft and other charges.

Following a two day trial, the Defendant was acquitted on all charges. It was the defence case that the Defendant had been mentally ill for over 20 years, was suffering from 3 separate mental disorders and it was unlikely that she would have engaged in the conduct the subject of the charges, but for her mental illness. Detailed expert evidence was led to support the defence case.

Whilst it was gratifying that the defendant was found not guilty, there were several matters of note that arose out of the case.

First, the police and the prosecuting authority were fully aware of the defendant’s longstanding psychiatric history. Despite certain provisions in the Prosecution Code the decision was made that the prosecution of the defendant should continue.

Second, the defendant should have been permitted to retire on medical grounds in 2017 when she made her first application to retire on that basis, because in the following years the defendant’s condition further deteriorated.

Third, reports in the media following the outcome of the case were critical of the decision. In some reports the decision was categorized as “another case of the courts favouring the police.”  This was unfair to the presiding Magistrate who provided detailed reasons for his decision based on the evidence given during the trial, and unfair to the defendant who had to sit through the ordeal of a trial during which her unblemished character was attacked, and she and her detailed medical history were put on public display.

It is fortunate that Hong Kong still has an effective criminal justice system which produced a fair result.

Article by Michelle W. Cheung


As in any other major financial city in the world, the business of money lending in Hong Kong is robust and thriving; so much so that multiple loans against the one property have been common, secured only by a contractual promise to repay.

 

In the recent Court of Final Appeal decision of Winland Finance Limited v Gain Hero Finance Limited [2022] HKCFA 3, two moneylending institutions fought for priority in claiming the proceeds of sale of a property (“Property”) belonging to a common debtor (“Debtor”).

 

In 2014, the Debtor first borrowed a sum from the Appellant and assigned the balance of all future proceeds of sale of the Property receivable by him (subject in law to prior encumbrances) to the Appellant as security for repayment of the loan (“First Loan”).

 

Subsequently, the Debtor borrowed another sum from the Respondent (“Second Loan”), again under a contractual promise as to repayment.

 

In 2015, upon the Debtor’s default in repayment, the Respondent obtained a judgment against the Debtor for recovery of the Second Loan, followed by charging orders nisi and absolute to enforce the judgment debt.

 

In 2016, the Respondent obtained an order for sale of the Property to enforce the judgment debt.

 

All the orders and instruments above were registered in the Land Registry.

 

In 2017, upon notification of the intended sale of the Property, the Appellant contended that it had priority over the Respondent to the net proceeds of sale of the Property after satisfaction of prior encumbrances, contending that its equitable interest had priority over that of the Respondent.

 

The dispute went all the way up to the Court of Final Appeal, which ruled that while the assignment of the balance of the sale proceeds of the Property by the Debtor in favour of the Appellant was an equitable assignment of the future proceeds and took effect in equity immediately upon the making of the assignment, the assignment of future proceeds did not create any interest in or otherwise affect the Property and it was correct for the Court of First Instance to order the vacation of the registration of the loan agreement of the First Loan in the Land Registry. This is because only instruments in writing that affect land may be registered in the Land Registry under the Land Registration Ordinance (Cap. 128). Instruments that do not affect land are simply not registrable and provisions concerning priority in the Land Registration Ordinance do not apply to them. 

 

Here, as the assignment of future proceeds was only an equitable chose in action, the Appellant obtained no interest whatsoever in the Property itself and the Debtor’s beneficial interest in the Property was unencumbered by such assignment.

 

In contrast, a charging order affects land and is registrable as such in the Land Registry, and has the like effect as an equitable charge. Before sale, an equitable charge or a charging order remains a proprietary interest in a property and is an encumbrance on it.

 

In accordance with the provisions of the Conveyancing and Property Ordinance (Cap. 219), proceeds of sale of mortgaged property should be applied towards the discharge of all prior encumbrances on the Property and to other designated purposes before distribution to the assignee/mortgagee of the proceeds.

 

Applying the maxim of nemo dat quod non habet (i.e. no one can give what they do not have), an assignor cannot assign to an assignee what he is not entitled to receive by way of proceeds of sale upon the sale of the property. This means the Debtor could only assign the balance of all future proceeds of sale of the Property receivable by him to the Appellant subject to the application of the sale proceeds to prior encumbrances.

 

The equitable principle of “first-in-time prevails” relied upon by the Appellant did not apply because the subject matter of the earlier assignment to the Appellant of the future sale proceeds and the charging order subsequently obtained by the Respondent over the Property were simply different.

 

As such, in terms of priority to the proceeds, the Respondent must rank before the Appellant.

 

Finally, Pacific Chambers congratulates its members, Jeevan Hingorani, Lawrence Cheung and Teresa Leung, on their success in defending this case in the Court of Final Appeal.

 

The members of Pacific Chambers were pleased to welcome on 1 December, new members Warren Suen and Tony Lo.

Warren Suen is a chartered architect, having completed his Bachelor of Arts in Architectural Studies at the University of Hong Kong in 2011 and a Master of Architecture at the University of Manchester in 2014. He commenced to study Law in 2016, completing his JD at the City University in 2018, his PCLL at the same university in 2019, and a Master of Laws in Conflict Law and International Arbitration at the London School of Economics and Political Science in 2020.

In 2020 Warren was the recipient of a Society of Construction Law Scholarship.

Upon his return from London Warren undertook pupillage with Simon Wong, Calvin Cheuk, Benny Lo and Jeffrey Tam.

Warren is currently a member of the Hong Kong Institute of Architects and the Hong Kong Institute of Surveyors Joint Dispute Resolution Committee, which manages the admissions and appointments of Arbitrators on behalf of the two institutes.

Whilst at Law School Warren was heavily involved in mooting, representing his universities at several international moots. He is also an accomplished musician, his instrument of choice being the trombone.

Whilst Warren is open to receiving instructions in all types of cases, having regard to his background he expects that much of his work will be in building and construction cases.

Tony Lo completed a Bachelor of Arts degree with a major in Communications and a minor in Publishing at the Simon Fraser University in 2013. Whilst studying and for several years after he graduated, Tony worked in various positions for Federal Express in Canada.

He completed his JD at City University in 2018, his PCLL at the same university in 2019, and in 2020 he completed a Master of Laws specializing in Competition Law at Kings College, London.

Whilst studying in Hong Kong Tony interned at Pacific Chambers with Holden Slutsky.

Like Warren, during his studies Tony was also involved in mooting and during his time in London was a member of the King’s College Bar and Mooting Society.

Upon his return from London Tony undertook pupillage with Azan Marwah, Jeffrey Li, Clement Lau and Colin Wright.

He is a keen tennis player and also plays golf.

Although Tony has an interest in ADR, which he studied as an elective at City University, he hopes initially to develop a general practice.

We warmly welcome both our new members.

Sadly, on 30 November long standing members David Boyton, Elizabeth Herbert and Belinda Ma, as well as Peggy Pao, left Pacific Chambers. We take this opportunity to wish them well in their future careers.

The members of Pacific Chambers are very pleased to welcome our newest member, Ms. Helen Au who joined us on the 8 November 2021.

Helen was called to the bar in Hong Kong in 2002, having completed both her LLB and PCLL at the University of Hong Kong.

She has a broad civil practice with a focus on commercial, land, property, real estate, building management cases as well as probate cases.

She is a CEDR accredited mediator and a fellow of both the Chartered Institute of Arbitrators and the Hong Kong Institute of Arbitrators.

Apart from her practice as counsel in litigation she regularly appears as a party representative in arbitrations and also accepts appointment as an arbitrator.

In 2020-21 she was Honorary Secretary of the East Asia Branch of the Chartered Institute of Arbitrators.

Helen has served as the Chairperson of the Appeal Tribunal Panel [Buildings] since 2012, a member of the Inland Revenue Board of Review since 2016 and between December 2014 and November 2020 sat as an adjudicator of the Registration of Persons Tribunal.

Helen, you are most welcome!

A warm welcome to Johnny and Michelle.

Johnny completed a double degree in Social Science and Law at the University of Hong Kong and then completed a Master of Laws at Kings College, London gaining a distinction in competition enforcement and procedure. Whilst at Kings College Johnny represented the law school in the Herbert Smith Freehills Competition Moot.  He later completed his PCLL at the University of Hong Kong.  

His pupil masters included our members Andrew Raffell, Lawrence Cheung and John Reading SC

Johnny is developing a broad civil and criminal practice, and has experience in such areas as commercial injunctions, shareholders disputes, land, competition law, trusts and personal injuries. On the criminal side, Johnny also has experience in handling of legal visits, bail applications, pleas in mitigation, trials and appeals. 

Michelle attended the University of Wisconsin-Madison on a 4 year athletic scholarship [golf] and graduated with the degree of Bachelor of Arts in Psychology and a certificate in Global Health. During her time there she represented her University in the University Games. 

Upon returning to Hong Kong she completed both her Juris Doctor and PCLL  at the Chinese University of Hong Kong. 

Her pupil masters included members James Niehorster and Elizabeth Herbert. 

Michelle is developing a combined civil and criminal practice including undertaking matrimonial, building and construction and torture claimant cases. 

She is a member of the Hong Kong National Golf team and has played golf in many international tournaments including two Asian Games, and 3 World Amateur Team Championships. She plays off scratch.

Article by Holden N. Slutsky


The Harman undertaking, stemming from Home Office v Harman [1983] 1 AC 280, is an undertaking to Court implied by law not to use documents disclosed by one party to the other in any proceedings for an ulterior or collateral purpose.

 

Moreover, an implied undertaking (known as the Taylor’s implied undertaking) extends the principle to documents obtained under criminal investigations and actions (Taylor and Anor. v Director of the Serious Fraud Office [1999] 2 A.C. 177).

 

However, a release from such implied undertakings, in some circumstances, may be granted by the Court.

 

In Wong Lee Yuk Ping Agnes ("Wong") v The Commissioner of Police & Wah Sun Hong Limited ("Wah Sun Hong") HCMP 722/2019, Wah Sun Hong had made discovery in civil proceedings against Wong in respect of a claim, while also supplying documents to the police in support of a criminal complaint on the same matter, alleging they were relevant to the civil action. These documents were subsequently supplied by the police to Wong in order for her to respond to the accusations.

 

However, a number of crucial documents disclosed to the police had not been discovered in the civil action.

 

Wong, represented by Jeevan Hingorani leading Lawrence Cheung, sought release from her implied undertaking to Court that she would not use the police-supplied documents for any collateral purpose, in particular the civil action.

 

Wah Sun Hong had argued in numerous correspondence and at the hearing that no implied undertaking existed; the application was an abuse of process and Wong should simply have applied for specific discovery.

 

These arguments were rejected by the Court of First Instance which ordered release so that Wong could identify with precision (without breach of the undertaking) the documents of which she could proceed to specific discovery.

 

(Comment: It was accepted by Wah Sun Hong, in court, that an implied undertaking did exist in respect of the subject documents. Wah Sun Hong did not challenge the law as to restraint of use for a collateral or ulterior purpose. Further, it was not argued by Wah Sun Hong that use of the documents by Wong in a civil action would not constitute a collateral purpose. It would follow then that the application for release could not have been an abuse of process.)

Pacific Chambers gives a warm welcome to our newest member, Ms. Toni Y.T. Chan.

 

During her studies at the Chinese University of Hong Kong (CUHK), she was awarded the JD Gold Scholarship and Silver Scholarship for her academic performance, as well as the Boase Cohen & Collins Prize for Civil Litigation Practice. She also represented the CUHK team in Willem C. Vis and Willem C. Vis (East) International Commercial Arbitration Moot. She subsequently assisted the CUHK Vis team as a student coach.

 

Toni previously served pupillage under Andrew Raffell.

 

She is currently developing a broad practice. For criminal practice, she has experience in cases involving different offences such as riot, offensive weapons, drugs, dishonesty and immigration. On the civil side, she has experience in personal injuries as well as general contractual matters.

 

You may find a link to her profile here.

 

The members of Pacific Chambers are delighted to announce the appointment of Jeevan Hingorani as the new Head of Chambers. Jeevan, the founder of Pacific Chambers, is familiar with his new role having been the head for a number of years in the past. Jeevan has been a role model to many, being the consummate professional and an individual of the utmost integrity. Many will remember him as 㷫過辣雞, a name coined by certain awestruck clients for the fear he struck in witnesses under his cross-examination (which he continues to do). 

 

Pacific Chambers congratulates members John Reading SC, and James Niehorster, for being recognised in The Legal 500 Asia Pacific 2021.  The Legal 500 Asia Pacific is an annual publication providing commentary and insight into the legal marketplaces of 25 Asia Pacific jurisdictions.

 

John Reading SC was recognised as a leading silk in white-collar crime. It was noted, John Reading SC is a former public prosecutor who continues to prosecute as well as defend, with a track record of politically charged cases including that against former Birmingham City FC owner Carson Yeung.’

James Niehorster was recognised as a leading junior in construction. It was noted, ‘He is making a name for himself in the fields of construction and engineering, and is very useful as a junior to lead in such matters as he is also qualified as a quantity surveyor’ and that he ‘has a track record of construction work in Hong Kong, appearing alongside elite names in the English bar as part of a broad practice’.

The Legal 500 Asia Pacific 2021 also commented ‘Pacific Chambers includes members with expertise in serious criminal cases.’ Read more here.

On 28 July 2020, John Wright delivered a fascinating guest lecture on life as a criminal barrister entitled ‘A Criminal Law Barrister’s Reflections’ as part of the University of Law’s Speaker Series.

 

John gave a unique insight from the perspective of a barrister of long standing in Hong Kong, who has seen many changes throughout his career. 


The lecture was featured in the ‘Campus Voices’ section of the September 2020 issue of Hong Kong Lawyer. Read more here.

 

To watch a recording of the lecture, click here (pw: 6US2thR%).

Holden N. Slutsky, instructed by the Bar Free Legal Service Scheme, a scheme established to provide free legal advice and representation in cases where Legal Aid is not available or where a party is unable to afford legal assistance but where the case is thought to be one where assistance should be given, appealed the criminal conviction of the appellant in HCMA 49/2018.

The appellant was originally found guilty in the Kwun Tong Magistrates’ Courts of having committed an act of a lewd, obscene or disgusting nature or outraging public decency by taking an up-skirt video clip of a female on the escalators inside Mega Box.

Appealing his conviction, counsel for the appellant argued that (i) his conviction was unsafe and/or unsatisfactory as the magistrate had erred in finding the appellant’s behaviour was deliberate and that the possibility of accident could not be excluded, and (ii) the magistrate had misunderstood the evidence before him and drew conclusions when there was no evidence to support the same resulting in an error in the findings of facts.

Ultimately, the appellant’s conviction was quashed and the sentence set aside.

A link to the judgment dated 10 September 2020 may be found here.

Jeevan Hingorani and Kevin Li achieved a landmark success for the Plaintiff in a hard-fought probate battle involving challenges to a will based on due execution, testamentary capacity and knowledge & approval grounds. Having lost at first instance, they succeeded on appeal to the Court of Appeal whose Judgment is of considerable importance to probate practitioners. The Defendant’s applications for leave to appeal to the CA and the Leave Committee of the CFA were soundly rejected. See Choy Po Chun & Ano v Au Wing Lun.