The Convicted Criminal, the Greedy and Shameless Solicitor and Lawyer Y C Tong, Admitted Stealing His Own Client's Money Again, Said in Mitigation He Did Not Renew His Practising Certificate - 貪心無恥嘅唐汝駿律師再認偷自己個客嘅錢 求情指沒有再續律師牌
http://hk.apple.nextmedia.com/realtime/news/20150604/53813754
前暫委裁判官、曾任職律師行顧問的唐汝駿，去年承認偷竊律師樓及客戶共2.7萬元，經上訴後獲改判緩刑。唐再被爆於2010年至2014年任律師行顧問期間，以多個藉口向獲批法援的客人收取額外費用，涉款4.4萬元，他今在裁判法院承認三項偷竊罪。
2015年6月3日 星期三
大律師黃錦娟就失職停牌上訴得直 - Lawyer Counsel Barrister Catherine K K Wong Had Her Conviction of Professional Misconduct Quashed on Appeal
http://hk.on.cc/hk/bkn/cnt/news/20150603/bkn-20150603163852461-0603_00822_001.html
Barrister Lawyer Counsel Catherine Wong Had Her Conviction of Professional Misconduct Quashed on Appeal - 黃錦娟大律師就失職停牌上訴得直
中原地產前女經紀劉秀瑜，早年被控串謀中原地產職員向公司詐騙介紹費予中間人，劉於08年因串謀詐騙罪成判囚10個月，但於11年上訴得直及撤銷定罪；大律師紀律審裁委員會去年3月裁定，當時代表劉的大律師黃錦娟未有傳召案中另一被告羅家寶作供，行為嚴重不稱職，判罰停牌1個月。黃錦娟不服裁決，今向上訴庭提上訴，要求推翻被指失職的判決。
上訴庭下午截定黃錦娟上訴得直，撤銷其失職判決，相關理由押後公布。
代表黃錦娟的律師早前陳詞時指，大律師公會的裁決忽略了若當時傳召羅家寶，或會令劉秀瑜更不利，應該代表律師有酌情權決定是否傳召證人，認為不屬疏忽或不稱職。
______________________________________
http://hk.apple.nextmedia.com/realtime/news/20150603/53811343
女大律師黃錦娟於2010年被上訴庭指，在2008年代表其中一名中原地產高層涉收回佣案時，未有傳召看似對被告有利的證人出庭作供，令該被告未獲公平審訊。黃於去年3月被大律師公會紀律委員會裁定專業失當，停牌一個月。黃不服定罪及判罰，今由英御用大狀David Perry義務出庭提上訴，結果上訴得直，上訴庭將押後頒下判詞解釋。
據今日庭上透露，有關停牌令因黃的上訴而暫緩，一直未有執行。
Barrister Lawyer Counsel Catherine Wong Had Her Conviction of Professional Misconduct Quashed on Appeal - 黃錦娟大律師就失職停牌上訴得直
中原地產前女經紀劉秀瑜，早年被控串謀中原地產職員向公司詐騙介紹費予中間人，劉於08年因串謀詐騙罪成判囚10個月，但於11年上訴得直及撤銷定罪；大律師紀律審裁委員會去年3月裁定，當時代表劉的大律師黃錦娟未有傳召案中另一被告羅家寶作供，行為嚴重不稱職，判罰停牌1個月。黃錦娟不服裁決，今向上訴庭提上訴，要求推翻被指失職的判決。
上訴庭下午截定黃錦娟上訴得直，撤銷其失職判決，相關理由押後公布。
代表黃錦娟的律師早前陳詞時指，大律師公會的裁決忽略了若當時傳召羅家寶，或會令劉秀瑜更不利，應該代表律師有酌情權決定是否傳召證人，認為不屬疏忽或不稱職。
______________________________________
http://hk.apple.nextmedia.com/realtime/news/20150603/53811343
女大律師黃錦娟於2010年被上訴庭指，在2008年代表其中一名中原地產高層涉收回佣案時，未有傳召看似對被告有利的證人出庭作供，令該被告未獲公平審訊。黃於去年3月被大律師公會紀律委員會裁定專業失當，停牌一個月。黃不服定罪及判罰，今由英御用大狀David Perry義務出庭提上訴，結果上訴得直，上訴庭將押後頒下判詞解釋。
據今日庭上透露，有關停牌令因黃的上訴而暫緩，一直未有執行。
2013 - Lawyer Counsel Barrister Raymond Wong Found Guilty of Fraud (黃桂生大律師行使假遺囑罪成監禁四年半)
http://news.discuss.com.hk/viewthread.php?tid=24426917&extra=page%3D1
http://www.scmp.com/news/hong-kong/article/1367954/barrister-convicted-using-fake-will-and-forging-dead-mans-signature
(SCMP, 28 November, 2013)
Lawyer Counsel Barrister Raymond Wong convicted of using fake will and forging dead man's signature.
Lawyer Counsel Barrister Raymond Wong has been convicted of using a bogus will drawn up in the name of a late calligraphy master that purportedly left a Western District flat to his sister, who was one of the master's apprentices.
It was impossible for the will to be real as three signatures on the document were found to be fake, a judge said yesterday.
Lawyer Counsel Barrister Raymond Wong (Wong Kwai-sang), 50, also forged the signature of Au Shu-cham on bank slips to withdraw a total of HK$15,400 from Au's bank account after he died in 2009 aged 75.
Wong was found guilty of nine charges - three of using a forged will, one of making a false statement on oath, and six counts of theft for taking the money.
"The will was certainly not made by Au," Judge Pang Chung-ping said in the District Court. "It is definitely a false document."
The court heard earlier that Au sold the flat on Sai Yuen Lane to his godson for HK$1 million in 1997 and continued to live in it.
In October 2009, Wong submitted a will to the High Court claiming Au had appointed him as executor and made his elder sister, who lived at the flat with Au and a few other pupils for more than 20 years, as a beneficiary.
In yesterday's ruling, the judge said that if Au had wanted to draw up a will when he became very ill in June 2009, he would have told at least one or two people who were really close to him.
However, no one saw Au sign the will. Two witnesses who purportedly signed it did not exist, and an expert found Au's signature was fake. Au's other pupils also said he had never mentioned leaving his estate to Wong's sister, Pang noted.
He adjourned sentencing to December 12 pending a psychiatric report, after Wong claimed he suffered from insomnia and mental illness.
_______________________________________________________
Barrister Lawyer Counsel Raymond Wong was found guilty of fraud in 2013: -
http://joycekwan20130602.blogspot.hk/2013/12/barrister-raymond-k-s-wong.html
黃桂生大律師 (Barrister Raymond K S Wong) 行使假遺囑罪成監禁四年半
Barrister Lawyer and Counsel Raymond Wong also known as Barrister Lawyer and Counsel Raymond K S Wong Convicted of Presenting a Forged Will Case - 黃桂生大律師行使假遺囑罪成案 - 實際判刑: -
http://hk.apple.nextmedia.com/news/art/20131214/18550553
大律師黃桂生以假遺囑承辦已故甘草演員兼書法家區樹湛的遺產，並以假文件從區樹湛的銀行戶口提走1.54萬元，經審訊後被裁定使用假文書和盜竊等九項罪名成立。法官昨天斥黃桂生的行為卑劣，身為大律師卻利用專業知識犯案，極大機會因而失去大律師資格，屬黃桂生貪婪所致，與人無尤，判他監禁四年半。
抗辯手法不切實際
被告黃桂生（51歲）前天在區域法院被定罪時，獲兩名大律師到庭旁聽支持，昨天卻不見兩人蹤影。法官彭中屏指出，兩人對被告的行為應感蒙羞。
區樹湛在2009年7月去世，案發在2009年至2012年期間。法官指出，被告在區樹湛過世後一個月，即申請逆權侵佔其西環西源里單位，足見被告早已垂涎區樹湛的物業，而非一時貪婪，是經過思量後依計行事。
法官又批評辯方的抗辯手法不切實際，如以尋找筆迹專家為由，一再押後案件，浪費法庭時間。從被告提交的求情信，可見他仍在抵賴罪責，毫無悔意。雖然被告自爆有精神問題，但法官相信病情跟犯案無關。
案件編號：DCCC158/13
http://www.scmp.com/news/hong-kong/article/1367954/barrister-convicted-using-fake-will-and-forging-dead-mans-signature
(SCMP, 28 November, 2013)
Lawyer Counsel Barrister Raymond Wong convicted of using fake will and forging dead man's signature.
Lawyer Counsel Barrister Raymond Wong has been convicted of using a bogus will drawn up in the name of a late calligraphy master that purportedly left a Western District flat to his sister, who was one of the master's apprentices.
It was impossible for the will to be real as three signatures on the document were found to be fake, a judge said yesterday.
Lawyer Counsel Barrister Raymond Wong (Wong Kwai-sang), 50, also forged the signature of Au Shu-cham on bank slips to withdraw a total of HK$15,400 from Au's bank account after he died in 2009 aged 75.
Wong was found guilty of nine charges - three of using a forged will, one of making a false statement on oath, and six counts of theft for taking the money.
"The will was certainly not made by Au," Judge Pang Chung-ping said in the District Court. "It is definitely a false document."
The court heard earlier that Au sold the flat on Sai Yuen Lane to his godson for HK$1 million in 1997 and continued to live in it.
In October 2009, Wong submitted a will to the High Court claiming Au had appointed him as executor and made his elder sister, who lived at the flat with Au and a few other pupils for more than 20 years, as a beneficiary.
In yesterday's ruling, the judge said that if Au had wanted to draw up a will when he became very ill in June 2009, he would have told at least one or two people who were really close to him.
However, no one saw Au sign the will. Two witnesses who purportedly signed it did not exist, and an expert found Au's signature was fake. Au's other pupils also said he had never mentioned leaving his estate to Wong's sister, Pang noted.
He adjourned sentencing to December 12 pending a psychiatric report, after Wong claimed he suffered from insomnia and mental illness.
_______________________________________________________
Barrister Lawyer Counsel Raymond Wong was found guilty of fraud in 2013: -
http://joycekwan20130602.blogspot.hk/2013/12/barrister-raymond-k-s-wong.html
黃桂生大律師 (Barrister Raymond K S Wong) 行使假遺囑罪成監禁四年半
Barrister Lawyer and Counsel Raymond Wong also known as Barrister Lawyer and Counsel Raymond K S Wong Convicted of Presenting a Forged Will Case - 黃桂生大律師行使假遺囑罪成案 - 實際判刑: -
http://hk.apple.nextmedia.com/news/art/20131214/18550553
大律師黃桂生以假遺囑承辦已故甘草演員兼書法家區樹湛的遺產，並以假文件從區樹湛的銀行戶口提走1.54萬元，經審訊後被裁定使用假文書和盜竊等九項罪名成立。法官昨天斥黃桂生的行為卑劣，身為大律師卻利用專業知識犯案，極大機會因而失去大律師資格，屬黃桂生貪婪所致，與人無尤，判他監禁四年半。
抗辯手法不切實際
被告黃桂生（51歲）前天在區域法院被定罪時，獲兩名大律師到庭旁聽支持，昨天卻不見兩人蹤影。法官彭中屏指出，兩人對被告的行為應感蒙羞。
區樹湛在2009年7月去世，案發在2009年至2012年期間。法官指出，被告在區樹湛過世後一個月，即申請逆權侵佔其西環西源里單位，足見被告早已垂涎區樹湛的物業，而非一時貪婪，是經過思量後依計行事。
法官又批評辯方的抗辯手法不切實際，如以尋找筆迹專家為由，一再押後案件，浪費法庭時間。從被告提交的求情信，可見他仍在抵賴罪責，毫無悔意。雖然被告自爆有精神問題，但法官相信病情跟犯案無關。
案件編號：DCCC158/13
Lawyer Counsel Barrister Michael Yin of Sir Oswald Cheung's Chambers Still Guilty - 張奧偉爵士大律師事務所的殷志明大律師仍然有罪
http://news.discuss.com.hk/viewthread.php?tid=24730259&extra=page%3D1
http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=98578&currpage=T
1. On 23 December 2014 the appellant was convicted after trial by Mr Robin Yue, a Special Magistrate, of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap 374. He was fined some $2,500 and now appeals against that conviction.
2. The facts were not much disputed as the incident was captured on CCTV. It occurred in the car park of the New World Tower, Central. The only live witness was PW1 who provided evidence both by testimony and by means of the camcorder installed in his car. PW1 was driving from the ground floor of the car park to the second floor where the exit is located. He was travelling at about 8 to 10 km/h. He drove to the ramp between the first and second floor. He heard the sound of a car so he stopped in the wrong lane that is the lane for oncoming traffic. The appellant’s car turned right onto the ramp and collided with the left front of PW1’s car. The Magistrate accepted, if it is of any relevance, that PW1’s car had been forced to go onto the lane for oncoming traffic by a car parked on his left side. From the position of the appellant’s vehicle a view of potential oncoming traffic up the ramp is to be had using the convex mirror shown in photo 6 page 26 of the Appeal Bundle. Photo 8 shows the resultant positions of the vehicles.
3. The appellant exercised his right not to give evidence, putting the prosecution to strict proof. He did however make a submission of no case to answer at the close of the prosecution case and a submission on his own behalf in closing. He also put questions to PW1. To state the obvious there was thus no evidence before the Magistrate as to the appellant’s actions and view of the position of PW1’s car prior to the impact.
4. Irrespective of any fault on PW1’s part the learned Magistrate demonstrated clearly that he was alive to the necessity to analyse the evidence to see if the appellant’s standard of driving had been proved by the Prosecution to fell below that of the reasonably prudent motorist and further if so, had the Prosecution proved that beyond a reasonable doubt? The Magistrate also gave due and proper allowance for the appellant’s clear driving record as shown in paragraph 8 of the Statement of Findings.
5. Clearly and this is perfectly articulated in Paragraph 28 of the Statement of Findings the major and very proper basis of the appellant’s conviction leaving aside whether he did or should have checked the convex mirror is that when he turned the corner onto the ramp the other vehicle was sufficiently distant, estimated at one vehicle’s length from the appellant’s vehicle, to avoid contact by steering or stopping had he been driving in the manner of a reasonably prudent motorist. The Magistrate found this proved beyond all reasonable doubt and therefore properly convicted the appellant.
http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=98578&currpage=T
HCMA 28/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO 28 OF 2015
(ON APPEAL FROM ESS NO 37957 OF 2014)
_______________
| BETWEEN | ||
| HKSAR | Respondent | |
| and | ||
| YIN CHI MING MICHAEL | Appellant |
_______________
| Before: Deputy High Court Judge Tallentire in Court |
| Date of Hearing: 7 May 2015 |
| Date of Judgment: 7 May 2015 |
| Date of Handing Down Reasons for Judgment: 22 May 2015 |
________________________
REASONS FOR JUDGMENT
________________________
________________________
1. On 23 December 2014 the appellant was convicted after trial by Mr Robin Yue, a Special Magistrate, of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap 374. He was fined some $2,500 and now appeals against that conviction.
2. The facts were not much disputed as the incident was captured on CCTV. It occurred in the car park of the New World Tower, Central. The only live witness was PW1 who provided evidence both by testimony and by means of the camcorder installed in his car. PW1 was driving from the ground floor of the car park to the second floor where the exit is located. He was travelling at about 8 to 10 km/h. He drove to the ramp between the first and second floor. He heard the sound of a car so he stopped in the wrong lane that is the lane for oncoming traffic. The appellant’s car turned right onto the ramp and collided with the left front of PW1’s car. The Magistrate accepted, if it is of any relevance, that PW1’s car had been forced to go onto the lane for oncoming traffic by a car parked on his left side. From the position of the appellant’s vehicle a view of potential oncoming traffic up the ramp is to be had using the convex mirror shown in photo 6 page 26 of the Appeal Bundle. Photo 8 shows the resultant positions of the vehicles.
3. The appellant exercised his right not to give evidence, putting the prosecution to strict proof. He did however make a submission of no case to answer at the close of the prosecution case and a submission on his own behalf in closing. He also put questions to PW1. To state the obvious there was thus no evidence before the Magistrate as to the appellant’s actions and view of the position of PW1’s car prior to the impact.
4. Irrespective of any fault on PW1’s part the learned Magistrate demonstrated clearly that he was alive to the necessity to analyse the evidence to see if the appellant’s standard of driving had been proved by the Prosecution to fell below that of the reasonably prudent motorist and further if so, had the Prosecution proved that beyond a reasonable doubt? The Magistrate also gave due and proper allowance for the appellant’s clear driving record as shown in paragraph 8 of the Statement of Findings.
5. Clearly and this is perfectly articulated in Paragraph 28 of the Statement of Findings the major and very proper basis of the appellant’s conviction leaving aside whether he did or should have checked the convex mirror is that when he turned the corner onto the ramp the other vehicle was sufficiently distant, estimated at one vehicle’s length from the appellant’s vehicle, to avoid contact by steering or stopping had he been driving in the manner of a reasonably prudent motorist. The Magistrate found this proved beyond all reasonable doubt and therefore properly convicted the appellant.
2000年 - 朱奉慈大律師專業失當罪成被停牌 (Year 2000 - Lawyer, Counsel and Barrister George Chu Guilty of Professional Misconduct and Suspended)
http://news.discuss.com.hk/viewthread.php?tid=24413069&extra=page%3D1
http://joycekwan20130602.blogspot.hk/2013/12/lawyer-counsel-and-barrister-george-chu.html
Lawyer, Counsel and Barrister George Chu Deceived HKU Guilty of Professional Misconduct
Source: http://www.scmp.com/article/307891/barrister-barred-deceiving-university
(South China Morning Post, February 12, 2000, Cliff Buddle)
Barrister Barred for Deceiving University
Barrister George Chu (朱奉慈大律師) has been suspended for six months after a disciplinary tribunal found he pretended to have a first class honours degree when applying for a scholarship at the University of Hong Kong.
George Chu Fung-chee, admitted to the Bar in 1994, also breached a promise to the university not to operate as a barrister once he became a post-graduate student, the Barristers' Disciplinary Tribunal found.
The suspension was the longest to be imposed since 1996, and the tribunal took the unusual step of ordering that its findings be sent to the Secretary for Justice, Director of Legal Aid, the Law Society and all barristers.
Bar Association chairman Ronny Tong Ka-wah SC, said it had recently started requesting the tribunal to order publication of this kind in appropriate cases.
'There is an educational element in the decisions themselves,' he said.
'There is also a need for an increase in transparency in the profession. Those of us who have unfortunately committed disciplinary offences should be made known to the public.' Referring to Mr Chu's suspension, Mr Tong said: 'This is a serious case. In these circumstances it is only right that it be made known.' Bar Association honorary secretary Ambrose Ho said further changes which would make disciplinary decisions more transparent were being considered, but they might require amending current laws.
'We hope that by publishing the details of a conviction it might help our own members in complying with our regulations,' he said.
Mr Chu, whose suspension began on February 1 2000, was found guilty in relation to five complaints of professional misconduct.
He was convicted of falsely stating that his degree in economics and political science, awarded by the University of Waterloo, in Canada, was a first class honours degree.
The misrepresentation was used to support an application for admission to the university in March 1997, for post-graduate studentship in early September 1997, and for a scholarship at the end of that month.
He was also found to have worked as a barrister in September and October 1997, despite promising the university he would not, and signing an eligibility document stating he was not engaged in paid employment.
Mr Chu has the right to appeal against the tribunal's decision in the Court of Appeal.
He could not be contacted for comment.
_______________________________________________________________________
Source: http://hk.apple.nextmedia.com/news/art/20060521/5944835
(蘋果日報 2006 年5月21日之報導)
前大狀以堂費扣稅敗訴
曾參選區議會落敗的前執業大律師朱奉慈，早年申請研究生獎學金時，虛報有一級榮譽學士學位，兼違反暫時放棄執業的承諾，被大律師公會裁定違反專業操守，被停牌半年，兼要承擔紀律聆訊的堂費，他指已付堂費可扣稅，獲稅務上訴委員會接納，稅務局長昨在高等法院上訴得直，推翻委員會的決定。
參選區議會兩落敗
涉案堂費共75萬元，00至03年支付予大律師公會，稅務局長評估利得稅後，朱奉慈要求委員會覆核，委員會去年6月接納堂費是可扣除開支，推翻原本的評稅。
法官鍾安德昨頒布判詞，接納稅務局長上訴指，單純與納稅人業務有關的開支，並不足以視為可扣除開支，必須是「用作產生利潤」的開支才可扣稅，委員會犯了法律錯誤，遂恢復原本的評稅。
現年47歲的朱奉慈於94年成為執業大律師，97年向港大申請研究生獎學金時，虛報82年在加拿大一所大學所獲的學士學位屬一級榮譽，又違反向校方的承諾，一邊繼續執業做大律師，一邊領取兩個月約35,000元獎學金，00年經紀律聆訊，被裁定六項指控成立，朱曾於99年及03年參選區議會，均告落敗。
http://joycekwan20130602.blogspot.hk/2013/12/lawyer-counsel-and-barrister-george-chu.html
Lawyer, Counsel and Barrister George Chu Deceived HKU Guilty of Professional Misconduct
Source: http://www.scmp.com/article/307891/barrister-barred-deceiving-university
(South China Morning Post, February 12, 2000, Cliff Buddle)
Barrister Barred for Deceiving University
Barrister George Chu (朱奉慈大律師) has been suspended for six months after a disciplinary tribunal found he pretended to have a first class honours degree when applying for a scholarship at the University of Hong Kong.
George Chu Fung-chee, admitted to the Bar in 1994, also breached a promise to the university not to operate as a barrister once he became a post-graduate student, the Barristers' Disciplinary Tribunal found.
The suspension was the longest to be imposed since 1996, and the tribunal took the unusual step of ordering that its findings be sent to the Secretary for Justice, Director of Legal Aid, the Law Society and all barristers.
Bar Association chairman Ronny Tong Ka-wah SC, said it had recently started requesting the tribunal to order publication of this kind in appropriate cases.
'There is an educational element in the decisions themselves,' he said.
'There is also a need for an increase in transparency in the profession. Those of us who have unfortunately committed disciplinary offences should be made known to the public.' Referring to Mr Chu's suspension, Mr Tong said: 'This is a serious case. In these circumstances it is only right that it be made known.' Bar Association honorary secretary Ambrose Ho said further changes which would make disciplinary decisions more transparent were being considered, but they might require amending current laws.
'We hope that by publishing the details of a conviction it might help our own members in complying with our regulations,' he said.
Mr Chu, whose suspension began on February 1 2000, was found guilty in relation to five complaints of professional misconduct.
He was convicted of falsely stating that his degree in economics and political science, awarded by the University of Waterloo, in Canada, was a first class honours degree.
The misrepresentation was used to support an application for admission to the university in March 1997, for post-graduate studentship in early September 1997, and for a scholarship at the end of that month.
He was also found to have worked as a barrister in September and October 1997, despite promising the university he would not, and signing an eligibility document stating he was not engaged in paid employment.
Mr Chu has the right to appeal against the tribunal's decision in the Court of Appeal.
He could not be contacted for comment.
_______________________________________________________________________
Source: http://hk.apple.nextmedia.com/news/art/20060521/5944835
(蘋果日報 2006 年5月21日之報導)
前大狀以堂費扣稅敗訴
曾參選區議會落敗的前執業大律師朱奉慈，早年申請研究生獎學金時，虛報有一級榮譽學士學位，兼違反暫時放棄執業的承諾，被大律師公會裁定違反專業操守，被停牌半年，兼要承擔紀律聆訊的堂費，他指已付堂費可扣稅，獲稅務上訴委員會接納，稅務局長昨在高等法院上訴得直，推翻委員會的決定。
參選區議會兩落敗
涉案堂費共75萬元，00至03年支付予大律師公會，稅務局長評估利得稅後，朱奉慈要求委員會覆核，委員會去年6月接納堂費是可扣除開支，推翻原本的評稅。
法官鍾安德昨頒布判詞，接納稅務局長上訴指，單純與納稅人業務有關的開支，並不足以視為可扣除開支，必須是「用作產生利潤」的開支才可扣稅，委員會犯了法律錯誤，遂恢復原本的評稅。
現年47歲的朱奉慈於94年成為執業大律師，97年向港大申請研究生獎學金時，虛報82年在加拿大一所大學所獲的學士學位屬一級榮譽，又違反向校方的承諾，一邊繼續執業做大律師，一邊領取兩個月約35,000元獎學金，00年經紀律聆訊，被裁定六項指控成立，朱曾於99年及03年參選區議會，均告落敗。
The Objection of Mayer Brown JSM "Wholly Devoid of Merit", Says the Honourable Mr Justice Anthony To
http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=98722&currpage=T
1. On 24 December 2014, I handed down judgment in this action awarding the Plaintiff, Tadjudin, a sum of $3,900,000 as damages for loss of bonus for the year 2007 under her employment with Bank of America (the “Defendant”), without at the same time making an award of interest. Before the judgment was perfected and sealed, the Plaintiff’s solicitors, Oldham, Li & Nie, applied by letter for direction as to whether interest should be included in the draft order.
2. The Defendant’s solicitors, Mayer Brown JSM, objected on the ground that it was too late to ask for interest as judgment had already been passed and the omission could not be remedied by Order 20 rule 11 of the Rules of the High Court, ie the ‘slip rule’. They argue that the power to amend judgment and order under the ‘slip rule’ is limited to clerical mistake in a judgment or order or an error arising from an accidental slip or omission, for example arithmetical error in the calculation of damages or if there is some ambiguity in expression in an unambiguous decision. They submit that the error or omission must be an error in expressing the manifest intention of the court. The court cannot correct a mistake of its own in law or otherwise. They also insist that the Plaintiff’s solicitors should identify the factual basis for the application and pay costs of the application whatever the outcome.
3. I consider the objection frivolous and gave directions for filing of written submissions on the issue of interest for disposal in chambers without a hearing. I do not even find it necessary to rely on the ‘slip rule’ to remedy any omission. There was no clerical mistake or errors in calculation to be rectified. There was no omission by the Plaintiff as a claim for interest had been made. There was no mistake in law to correct. Though an award of interest was not made, that claim was not dismissed. Thus, insofar as the award of interest is concerned, no intention of the court has been manifested. There was no error in expressing the manifest intention of the court to be corrected. What was left was for the parties to wait the manifestation of the intention of the court.
4. This was a long trial, at the end of which judgment was reserved. There was no omission in asking for interest and no intention of the court has been manifested. Award of interest is a topic which could not have been addressed before the result was known. It would have been normal for the court to give judgment on damages and then invite submission on interest: see for example: Waddington Ltd v Chan Chun Hoo Thomas[1], quoted by the Defendant’s solicitors themselves. This court still has jurisdiction to adjudicate on the claim, especially as the order has not been sealed. The directions were given as part of the court’s case management function in an action which has not yet been concluded. There was no need for the Plaintiff to apply for interest or for amendment of the order by summons.
5. Furthermore, in Man Ping Nam and Man Fong Hang (No 2)[2], which was also an authority cited by the Defendant’s solicitors, Ribeiro PJ held that the discretion conferred by the ‘slip rule’ under Order 20 rule 11 should be liberally approached to ensure that the court’s decisions are properly given effect[3]. The Court of Final Appeal invoked the ‘slip rule’ to save an omission by the party in failing to ask for interest even after the order has been sealed. A fortiori, I do not see why the failure to award interest at the time of delivery of judgment, assuming that failure to be an omission, could not be remedied by the ‘slip rule’. But of course, for reasons as already explained, there is no need to invoke the ‘slip rule’. I consider the Defendant’s solicitors’ objection wholly devoid of merit.
6. The Plaintiff has succeeded on her claim for bonus for the year 2007. She has been deprived of the use of her money for nine years. The case took a long time to come up for trial because of discovery, striking out application by the Defendant and the subsequent appeal. The Plaintiff has not been guilty of delay in persecuting her claim. There is no reason why she should not be awarded interest for being deprived of the use of her money before judgment was given and after. Post-judgment interest rate is provided by statute. The evidence of the Defendant’s human resource department is that assessment under the performance incentive programme for the year would complete in February of the following year. Had the Defendant considered her eligible, the Plaintiff would have been paid her bonus by the end of February 2008. Thus, the Plaintiff should be entitled to interest on the bonus awarded from 1 March 2008 until 24 December 2014. The remaining question is the rate of pre-judgment interest to be awarded.
7. The Plaintiff’s solicitors referred to Komala Deccof & Co SA v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Pertamina)[4] in which the Court of Appeal held that the prima facie position should be that a losing party should pay interest at a reasonable rate from the date when the sum due should reasonably have been paid. The onus is on the losing party to show sufficient reason to depart from this prima facie position. As for interest rate, the Court of Appeal held that it should be a rate which reflects the cost to the plaintiff of being deprived of the money which he should have had and in commercial cases the rate should reflect the rate at which the plaintiff would have had to borrow money to supply the place of that which was withheld. The principles in Komala have been widely adopted in Hong Kong since 1984 until recently. The principles were approved by the Court of Final Appeal in Polyset Ltd v Panhandat Ltd[5] and pre-judgment interest rate is taken to be prime plus 1%.
8. The Plaintiff’s solicitors also refer to Sun Legend Investments Limited v Ho Yuk Wah David (No.2)[6] in which the court held that where the winning party is a small or less well-established entity, the appropriate rate of interest could be 3% over prime. On the strength of that authority, they submit that an appropriate rate of interest is 8%, being 2.25 to 3% over and above the prevailing prime rate of between 5.75% and 5% per annum in 2008. They justify the departure from prime plus 1% by arguing that the Plaintiff not being a commercial party has no access to commercial lending rate; that the Plaintiff having been out of employment was not in a position to negotiate for any favourable rate of interest; and that as the Plaintiff had to fund this litigation, she was not in a position to pay interest accrued on the loan resulting in compound interest being accrued against her.
9. However, the Defendant’s solicitors argue that the conventional formula of prime plus one percent has been overtaken by the recent decision of the Court of Final Appeal in Libertarian Investments Ltd v Hall[7]. In that case, the Court of Final Appeal awarded pre-judgment interest at the rate of 2% over the Bank of England base rate in a case involving sterling pounds and English company shares. That approach was adopted in Waddington Ltd v Chan Chun Hoo Thomas in which Mr Recorder Patrick Fung SC awarded pre-judgment interest at the rate of 2.5%. That rate was adopted after taking into consideration the following factors:
10. No particular principles have been given by the Court of Final Appeal as to how the interest rate was arrived at. I think Libertarian Investments does not represent a departure from the principles in Komala as approved by the Court of Final Appeal in Polyset Ltd, but a more realistic assessment of the appropriate interest rate under the prevailing money market condition. The guiding principle, as the Court of Final Appeal in Polyset Ltd put it, is to compensate a successful plaintiff for being kept out of his money. There are many different interest rates in the money market, such as prime rate, Interbank rate or “HIBOR”, mortgage rate, saving rate, fixed deposit rate etc. For very many years, Hong Kong has found itself in a persistently low interest rate environment with money in good supply. Saving rate and fixed deposit rate are ridiculously low. Under such an environment, prime rate seems to have fallen out of favour. HIBOR, particularly for 12 months, seems to be more reflective of the money market condition and a more realistic index to use in assessing the cost of money. It is used as a base rate for a lot borrowing. Interest for many mortgages and commercial lending is expressed in terms of HIBOR plus, with or without a cap based on prime plus or prime minus. That fixed percentage is a matter for negotiation depending on the bargaining power of the borrower, the size of the loan and the money market condition. It is below one percent for a borrower with good security and repayment ability and higher for ordinary consumer borrowing. Prime plus or minus nevertheless continue to be used for consumer mortgages and lending. I think as a rule of thumb 12-month HIBOR plus two percent (which is equivalent to prime minus 2%) would more realistically represent the average cost of consumer borrowing. I therefore adopt this formula as a starting point for fixing the pre-judgment interest rate. But bearing in mind the principles in Komala, I would adjust this rate upwards or downwards depending on the actual circumstances. If by reason of being deprived of his money, the plaintiff was required to borrow at a higher interest, I shall revise the rate upwards.
11. From the information available from the Hong Kong Monetary Authority, prime rate has been kept at 5% from 2009 to to-date, reflecting a very stable and low interest rate environment. From the same source, 12-month HIBOR ranges from 0.45% to 1.00% between January 2010 and April 2015. For most of the time during that period, the rates were on the high side. Using 12-month HIBOR at 0.85% as the mean rate, I adopt 2.85% per annum as the starting point for pre-judgment interest rate. Despite the submission of the Plaintiff’s solicitors, I have not been shown any evidence of the Plaintiff having to borrow at a cost above that rate. Accordingly, I award her pre-judgment interest at the rate of 2.85% per annum.
12. For the above reasons, I award the Plaintiff pre-judgment interest on the bonus award of $3,900,000 at the rate of 2.85% per annum from 1 March 2008 until 24 December 2014; and thereafter post-judgment interest at judgment rate until payment. I also award costs of this application to the Plaintiff, such costs are to be taxed if not agreed.
Oldham, Li & Nie, for the Plaintiff
Mayer Brown JSM (孖士打律師行 ), for the Defendant
HCA 322/2008
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 322 OF 2008
(Transferred from LBTC 5551 of 2007)
____________
| BETWEEN | ||
| TADJUDIN SUNNY | Plaintiff | |
| and | ||
| BANK OF AMERICA, NATIONAL ASSOCIATION | Defendant |
____________
| Before: Hon To J in Chambers |
| Date of Submission: 26 January 2015 |
| Date of Decision: 2 June 2015 |
______________
D E C I S I O N
______________
Introduction
1. On 24 December 2014, I handed down judgment in this action awarding the Plaintiff, Tadjudin, a sum of $3,900,000 as damages for loss of bonus for the year 2007 under her employment with Bank of America (the “Defendant”), without at the same time making an award of interest. Before the judgment was perfected and sealed, the Plaintiff’s solicitors, Oldham, Li & Nie, applied by letter for direction as to whether interest should be included in the draft order.
2. The Defendant’s solicitors, Mayer Brown JSM, objected on the ground that it was too late to ask for interest as judgment had already been passed and the omission could not be remedied by Order 20 rule 11 of the Rules of the High Court, ie the ‘slip rule’. They argue that the power to amend judgment and order under the ‘slip rule’ is limited to clerical mistake in a judgment or order or an error arising from an accidental slip or omission, for example arithmetical error in the calculation of damages or if there is some ambiguity in expression in an unambiguous decision. They submit that the error or omission must be an error in expressing the manifest intention of the court. The court cannot correct a mistake of its own in law or otherwise. They also insist that the Plaintiff’s solicitors should identify the factual basis for the application and pay costs of the application whatever the outcome.
3. I consider the objection frivolous and gave directions for filing of written submissions on the issue of interest for disposal in chambers without a hearing. I do not even find it necessary to rely on the ‘slip rule’ to remedy any omission. There was no clerical mistake or errors in calculation to be rectified. There was no omission by the Plaintiff as a claim for interest had been made. There was no mistake in law to correct. Though an award of interest was not made, that claim was not dismissed. Thus, insofar as the award of interest is concerned, no intention of the court has been manifested. There was no error in expressing the manifest intention of the court to be corrected. What was left was for the parties to wait the manifestation of the intention of the court.
4. This was a long trial, at the end of which judgment was reserved. There was no omission in asking for interest and no intention of the court has been manifested. Award of interest is a topic which could not have been addressed before the result was known. It would have been normal for the court to give judgment on damages and then invite submission on interest: see for example: Waddington Ltd v Chan Chun Hoo Thomas[1], quoted by the Defendant’s solicitors themselves. This court still has jurisdiction to adjudicate on the claim, especially as the order has not been sealed. The directions were given as part of the court’s case management function in an action which has not yet been concluded. There was no need for the Plaintiff to apply for interest or for amendment of the order by summons.
5. Furthermore, in Man Ping Nam and Man Fong Hang (No 2)[2], which was also an authority cited by the Defendant’s solicitors, Ribeiro PJ held that the discretion conferred by the ‘slip rule’ under Order 20 rule 11 should be liberally approached to ensure that the court’s decisions are properly given effect[3]. The Court of Final Appeal invoked the ‘slip rule’ to save an omission by the party in failing to ask for interest even after the order has been sealed. A fortiori, I do not see why the failure to award interest at the time of delivery of judgment, assuming that failure to be an omission, could not be remedied by the ‘slip rule’. But of course, for reasons as already explained, there is no need to invoke the ‘slip rule’. I consider the Defendant’s solicitors’ objection wholly devoid of merit.
6. The Plaintiff has succeeded on her claim for bonus for the year 2007. She has been deprived of the use of her money for nine years. The case took a long time to come up for trial because of discovery, striking out application by the Defendant and the subsequent appeal. The Plaintiff has not been guilty of delay in persecuting her claim. There is no reason why she should not be awarded interest for being deprived of the use of her money before judgment was given and after. Post-judgment interest rate is provided by statute. The evidence of the Defendant’s human resource department is that assessment under the performance incentive programme for the year would complete in February of the following year. Had the Defendant considered her eligible, the Plaintiff would have been paid her bonus by the end of February 2008. Thus, the Plaintiff should be entitled to interest on the bonus awarded from 1 March 2008 until 24 December 2014. The remaining question is the rate of pre-judgment interest to be awarded.
The pre-judgment interest rate
7. The Plaintiff’s solicitors referred to Komala Deccof & Co SA v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Pertamina)[4] in which the Court of Appeal held that the prima facie position should be that a losing party should pay interest at a reasonable rate from the date when the sum due should reasonably have been paid. The onus is on the losing party to show sufficient reason to depart from this prima facie position. As for interest rate, the Court of Appeal held that it should be a rate which reflects the cost to the plaintiff of being deprived of the money which he should have had and in commercial cases the rate should reflect the rate at which the plaintiff would have had to borrow money to supply the place of that which was withheld. The principles in Komala have been widely adopted in Hong Kong since 1984 until recently. The principles were approved by the Court of Final Appeal in Polyset Ltd v Panhandat Ltd[5] and pre-judgment interest rate is taken to be prime plus 1%.
8. The Plaintiff’s solicitors also refer to Sun Legend Investments Limited v Ho Yuk Wah David (No.2)[6] in which the court held that where the winning party is a small or less well-established entity, the appropriate rate of interest could be 3% over prime. On the strength of that authority, they submit that an appropriate rate of interest is 8%, being 2.25 to 3% over and above the prevailing prime rate of between 5.75% and 5% per annum in 2008. They justify the departure from prime plus 1% by arguing that the Plaintiff not being a commercial party has no access to commercial lending rate; that the Plaintiff having been out of employment was not in a position to negotiate for any favourable rate of interest; and that as the Plaintiff had to fund this litigation, she was not in a position to pay interest accrued on the loan resulting in compound interest being accrued against her.
9. However, the Defendant’s solicitors argue that the conventional formula of prime plus one percent has been overtaken by the recent decision of the Court of Final Appeal in Libertarian Investments Ltd v Hall[7]. In that case, the Court of Final Appeal awarded pre-judgment interest at the rate of 2% over the Bank of England base rate in a case involving sterling pounds and English company shares. That approach was adopted in Waddington Ltd v Chan Chun Hoo Thomas in which Mr Recorder Patrick Fung SC awarded pre-judgment interest at the rate of 2.5%. That rate was adopted after taking into consideration the following factors:
(i) the substantial downturn in the economic landscape in Hong Kong since 1996 which has resulted in a constant state of low interest rate;On the strength of Libertarian Investments, the Defendant’s solicitors submit that the interest rate should be no more than 2.5% per annum.
(ii) the Report by the Law Commission in the United Kingdom on “Pre-Judgment Interest on Debts and Damages” published in 2004 in which the Law Commission recommended pre-judgment interest should be set at the Bank of England base rate plus 1% with the court being given discretion to depart from such rate for such period for good reasons;
(iii) the United Kingdom base rate of 0.5%;
(iv) the 12-month HIBOR then in Hong Kong of 0.87%; and
(v) the then prime rate in Hong Kong of 5%.
10. No particular principles have been given by the Court of Final Appeal as to how the interest rate was arrived at. I think Libertarian Investments does not represent a departure from the principles in Komala as approved by the Court of Final Appeal in Polyset Ltd, but a more realistic assessment of the appropriate interest rate under the prevailing money market condition. The guiding principle, as the Court of Final Appeal in Polyset Ltd put it, is to compensate a successful plaintiff for being kept out of his money. There are many different interest rates in the money market, such as prime rate, Interbank rate or “HIBOR”, mortgage rate, saving rate, fixed deposit rate etc. For very many years, Hong Kong has found itself in a persistently low interest rate environment with money in good supply. Saving rate and fixed deposit rate are ridiculously low. Under such an environment, prime rate seems to have fallen out of favour. HIBOR, particularly for 12 months, seems to be more reflective of the money market condition and a more realistic index to use in assessing the cost of money. It is used as a base rate for a lot borrowing. Interest for many mortgages and commercial lending is expressed in terms of HIBOR plus, with or without a cap based on prime plus or prime minus. That fixed percentage is a matter for negotiation depending on the bargaining power of the borrower, the size of the loan and the money market condition. It is below one percent for a borrower with good security and repayment ability and higher for ordinary consumer borrowing. Prime plus or minus nevertheless continue to be used for consumer mortgages and lending. I think as a rule of thumb 12-month HIBOR plus two percent (which is equivalent to prime minus 2%) would more realistically represent the average cost of consumer borrowing. I therefore adopt this formula as a starting point for fixing the pre-judgment interest rate. But bearing in mind the principles in Komala, I would adjust this rate upwards or downwards depending on the actual circumstances. If by reason of being deprived of his money, the plaintiff was required to borrow at a higher interest, I shall revise the rate upwards.
11. From the information available from the Hong Kong Monetary Authority, prime rate has been kept at 5% from 2009 to to-date, reflecting a very stable and low interest rate environment. From the same source, 12-month HIBOR ranges from 0.45% to 1.00% between January 2010 and April 2015. For most of the time during that period, the rates were on the high side. Using 12-month HIBOR at 0.85% as the mean rate, I adopt 2.85% per annum as the starting point for pre-judgment interest rate. Despite the submission of the Plaintiff’s solicitors, I have not been shown any evidence of the Plaintiff having to borrow at a cost above that rate. Accordingly, I award her pre-judgment interest at the rate of 2.85% per annum.
Conclusion
12. For the above reasons, I award the Plaintiff pre-judgment interest on the bonus award of $3,900,000 at the rate of 2.85% per annum from 1 March 2008 until 24 December 2014; and thereafter post-judgment interest at judgment rate until payment. I also award costs of this application to the Plaintiff, such costs are to be taxed if not agreed.
| (Anthony To) | |
| Judge of the Court of First Instance | |
| High Court |
Oldham, Li & Nie, for the Plaintiff
Mayer Brown JSM (孖士打律師行 ), for the Defendant
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