Dr. Andrew Lynn
andrew.lynn@giltchambers.com
Office Contact No.: 2866 8233
Fax: 2866 7858
Admission:

2009 (Hong Kong)
2015 (England and Wales – Middle Temple)

Barrister Practice Summary

Practice. Andrew is a barrister practising both as courtroom/arbitration advocate and advisory lawyer. His primary interests include commercial disputes, trusts and probate, competition, and public law matters, especially where there is an international element. He has acted for HNW clients, commercial trusts, SVF (Stored Value Facility) licensees, and pension funds, both in the context of litigation and in an advisory capacity. Andrew is a full member of the Society of Trust and Estate Practitioners (STEP) as well as a fellow of the Hong Kong Institute of Arbitrators (FHKIArb). He passed all parts of his STEP International Trust Management exams with distinction, and has obtained further specialist STEP qualifications in (i) trust disputes, (ii) international succession and probate, (iii) foundations, (iv) UK tax for international clients, and (v) fund administration. In 2016 he was selected by the Hong Kong Bar Association for a competition law secondment at a leading commercial chambers in London.  He is a member of the Hong Kong Bar Association Committee on Competition Law. Andrew has also recently been selected for inclusion in "Who's Who Legal: Private Client 2017".
 
Education. Andrew graduated from the University of Edinburgh with first class honours before proceeding to the University of Cambridge (Magdalene and St. John’s College) to complete a Masters and Ph.D. in Renaissance Literature. At Cambridge he was awarded the Benefactors’ scholarship, along with the Newton Trust Award and British Academy scholarship, and his literary research has been cited in Ben Jonson: A Life (OUP). He converted to law by way of the Graduate Diploma in Law in the UK, which he passed with distinction.
 
Experience. Andrew has experience of conducting trials, interlocutory applications and appeals at various levels including Court of Final Appeal, Court of Appeal, Court of First Instance and District Court. He has acted as sole counsel as well as leading and led junior in several complex, high-value and vigorously contested claims, often with an international element. Two of the cases on which he has acted have been selected as ‘stand-out cases’ in Trust Quarterly Review of March 2015.
 
Instructions. Recent notable instructions include representing Madam Kan Lai Kwan as sole counsel during a nine-day trial dealing with complex trust matters and contested expert company valuation evidence, and thereafter as lead counsel in her appeals to the Court of Appeal and Court of Final Appeal (a HK$832.5 million claim). Andrew has recently also acted as sole counsel for plaintiff beneficiaries at first instance, and to resist an appeal, in a breach of trust case against a former executor, claiming compensation for wrongful use of valuable Hong Kong commercial estate property.
 
Publications. Andrew has published in major international trust law journals, including Trusts & Trustees (the leading international journal on trust law and practice) and Trust Quarterly Review, and spoken for the Society of Trust and Estate Practitioners. His most recent two Trusts & Trustees articles provide detailed guidance to trustees and lawyers on (i) how best to deal with trust-company structures and (ii) how best to respond in international divorce proceedings.
 
He  recently been commissioned by LexisNexis to author the ‘trust disputes’ and ‘trusts in divorce’ sections of the online resource, Lexis Practical Guidance (Hong Kong), as well as the trust disputes court forms.

Links to selected publications can be found here:

- ‘Dealing with trust-owned companies: property rights and fiduciary obligations’, Trusts & Trustees Advance Access published 13 April 2016
- ‘Damned if you do, damned if you don't: how should trustees respond in divorce proceedings?’ (2016) 22(4) Trusts & Trustees 416
‘Applying the Charman test to trusts in divorce: the decision of the Hong Kong Court of Final Appeal in Kan Lai Kwan v Poon Lok To Otto and HSBC International Trustee Limited (2015) 21(3) Trusts & Trustees 285
‘Split-up trusts: What does Kan Lai Kwan v Poon Lok To Otto and HSBC International Trustee Ltd tell us about the application of the Charman test to trusts on divorce?’ (2014) 12(4) Trust Quarterly Review 3. This article has been republished in the Italian journal, ‘Trusts e attività fiduciarie’, as ‘Trust Discrezionale e Divorzio’
- ‘A red-letter day’, (2016) 24(4) STEP Journal 75
- ‘Heavy duty’, (2016) 24(5) STEP Journal 32
- Lexis Practical Guidance (Hong Kong), ‘Trust formation and disputes’, ‘Breach of trust and remedies’, ‘Court jurisdiction and procedure’, ‘Trusts and divorce’


Speaking.
Recent speaking engagements include ‘Trust Law and Practice Update’ and talks for the Society of Trust and Estate Practitioners.

Pro Bono. Andrew is committed as a barrister to advancing the principles of open justice and freedom of political thought and expression (irrespective whether such thought challenges or supports the current liberal consensus), and would consider the possibility of pro bono work in meritorious cases engaging those principles where funding may be an issue.
 
Selected Cases
Trusts/Divorce
PLTO v KLK and HITL (HCMC 2/2010, 10 February 2012)  
Sole counsel during a nine-day trial dealing with complex trust matters and contested expert company valuation evidence in a HK$432 million claim.
 
Sole counsel acting in respect of the many related interlocutory applications, including: application for joinder of the trustee; application to serve out of the jurisdiction under the MCR; application for specific discovery of documents between settlor and trustee; application for variation of costs order nisi; application for interest on late payment.
 
PLTO v KLK [2013] 2 HKLRD 1089 
Lead counsel in a three-day appeal to the Court of Appeal in a HK$572.4 million claim.
 
Lead counsel on the final appeal to the Court of Final Appeal in a HK$832.5 million claim. The appeal raised important issues in relation to the treatment of offshore discretionary trusts in ancillary relief, as well as the proper approach to separation and post-separation accruals. Also lead counsel on the applications for leave to appeal and quantum and costs.
 
Trusts and Probate
Re Estate of Kong Wing Hong (HCMP 2045/2012, 24 February 2015) 
Acted as sole counsel for plaintiff beneficiaries seeking orders for (i) removal and replacement of an executor, (ii) provision of estate accounts, and (iii) compensation for loss of market rental arising as result of the executor’s wrongful use of valuable Hong Kong commercial estate premises.
 
Re Estate of Kong Wing Hong (CACV 69/2015, 11 November 2015) 
Acted as sole counsel for beneficiaries resisting an appeal raising issues of: conflict of interest and duty; estoppel by convention; proprietary estoppel; promissory estoppel; relief under section 60 Trustee Ordinance (Cap 29); and the approach to costs in breach of trust claims.
 
Re Estate of Kong Wing Hong (HCMP 2045/2012, 28 May 2015) 
Acted as sole counsel for plaintiff beneficiaries in a costs application as to whether beneficiaries (as opposed to executor/trustee) may be granted an indemnity costs award from the estate in a breach of trust claim.
 
Highmax Overseas Ltd v Chau Kar Hon Quinton (HCMP 2668/2012, 6 May 2013) 
Acted as sole counsel representing beneficiaries in a Beddoe application in respect of a Cayman-law discretionary trust.

Acted on appeal as to whether the court had power to direct how the trust companies (who were not trustees) should respond in insolvency proceedings. Led by John Scott SC.
 
In the Representation of HSBC International Limited [2011] JRC 167 and [2014] JRC 254A 
Instructed by the Hong Kong client to provide assistance (both in Hong Kong and in Jersey) to the Jersey legal team in respect of applications made to the Jersey Royal Court.
 
Companies/Shareholder Disputes
FCL China Development Pte Ltd and Another v Lai Yuen Ling and Others (CACV 193/2014, 12 August 2015) 
Acted for the plaintiff companies to resist an application for leave to appeal to the Court of Final Appeal in a dispute arising from a USD 50 million tri-partite investment agreement (involving Qingdao State Enterprise of the Qingdao Provincial Government) and joint venture agreement to carry out a development project in Qingdao.
 
Kerry Francis Moore v Jennex Corporation and Others (HCMP 2109/2015, 3 November 2016) 
Acted as sole counsel for the applicant in a commercial trust and shareholder dispute seeking declarations as to beneficial ownership of shares. In the absence of a deed of gift, the court looked to the conduct of the trustee, and in particular historic accounting treatment, to determine whether the share was a trust asset.

Kerry Francis Moore v Jennex Corporation and Others (HCMP 2109/2015, 9 May 2017)
Applying for and obtaining an order for rectification of company register under section 633 of the Companies Ordinance (Cap.622) and indemnity costs.

 
General Commercial Disputes
Poon Yiu Cheung v World Mastery Technology Ltd (CACV 276/2011, 17 September 2013) 

Acted for the plaintiff in resisting an appeal by a counterclaiming defendant in a case alleging breach of contract and breach of fiduciary duties (diversion of business and secret rebates) of a Hong Kong company’s American sales representative. With Mr Andy Lam.
 
Various Company/Commercial Matters

Instructed on several company/commercial matters including:

- acting for the plaintiff in a case claiming a purchase price resulting trust over Hong Kong residential property as well as conversion in tort over various goods;

- acting for the defendant in a case alleging breach of director duties, unjust enrichment and knowing receipt on the part of the director of a Hong Kong associate company of an international PR firm;

- acting for the plaintiff in a claim for breach of contract in relation to sale of shares in a substantial Hong Kong commercial entertainment operation, as well as breach of trust and knowing receipt/dishonest assistance in relation to a share nominee agreement.

 

Contracts
Re Estate of Kong Wing Hong [2014] 2 HKLRD 517 
Acted as sole counsel for beneficiaries under a will claiming inter alia a declaration that certain tenancy agreements (in respect of valuable Hong Kong commercial estate property from which the executor ran his business) were void and unenforceable. The case raised complex issues relating to implication of terms into agreements.
 
Re Estate of Kong Wing Hong (CACV 72/2014, 8 May 2015) 
Acted as sole counsel resisting an appeal from HCMP 2014/2012.
 
Acted on an application for a writ of habeas corpus in the context of an application for the extradition of the accused from Hong Kong to Australia. Led by Alexander King SC.
 
Acted on appeal to the Court of Appeal from refusal to grant writ of habeas corpus. Led by Gerard McCoy SC.
 
Acted on appeal to the Court of Final Appeal. The application for extradition from Hong Kong to Australia relied on telecommunications interception evidence the admissibility of which was challenged under the Basic Law Article 30 and the Interception of Communications and Surveillance Ordinance (Cap. 589). Led by Gerard McCoy SC.
 
Matrimonial
JAH nee S v VH (CACV 279/2012, 18 December 2013) 
Acted on an appeal by the appellant wife to the Court of Appeal from the grant (by a Court of First Instance judge) of leave to the husband to have decree nisi made absolute, which established that the public policy of ensuring a marriage that has irretrievably broken down be put to an end without further ado must be subject to an equally important public policy of ensuring the spouse who opposes the making of a decree nisi absolute must not be prejudiced in terms of financial provision by way of ancillary relief. Led by John Scott SC.
 
Injunctions – Property and Anti-Suit

Kong Colin Chung Ping and Another v Li Ka Sing and Others (HCMP 2431/2016, 2 May 2017) 
Acted as sole counsel applying for and obtaining an interlocutory injunction restraining the respondent from selling valuable commercial property pending trial.


JAH v VH
(FCMC 14350/2009consolidated with FCMC No 4402/2010, 24 May 2012)
Acted as sole counsel resisting the setting aside of interim preservative injunctions over substantial Cambodian commercial real estate, and an anti-suit injunction exceptionally restraining the respondent from commencing specified criminal as well as civil proceedings in Cambodia.
 
Security for Costs 
Acted as sole counsel in cross-applications for security for costs in a landlord-tenant dispute in respect of valuable residential property.
 
Civil Procedure 
YN v NA [2014] 5 HKC 49 
Acted as lead counsel for the appellant in an appeal to the Court of Appeal against the grant (by a District Court judge) of leave to appeal out of time, establishing that there is no jurisdictional obstacle to the bringing of an appeal from the grant of extension of time for leave to appeal.
 
Advisory 
Advised on various matters including the operation of commercial trust structures as well as the rights and obligations arising under various family and dynastic trusts.
 
Specialist Professional Qualifications 

Chartered Institute of Arbitrators Advanced Certificate in International Arbitration (2017)
STEP (Society of Trust and Estate Practitioners) Diploma in International Trust Management (Pass with Distinction) (2012), inclusive of the following examinations:
(1) Trust Creation: Law and Practice (Pass with Distinction) (2011);
(2) Company Law and Practice (Pass with Distinction) (2011);
(3) Trust Administration and Accounts (Pass with Distinction) (2012);
(4) Trustee Investment and Financial Appraisal (Pass with Distinction) (2012).
STEP (Society of Trust and Estate Practitioners) Advanced Certificate in Trust Disputes (Pass with Distinction) (2011)
STEP (Society of Trust and Estate Practitioners) Advanced Certificate in UK Tax for International Clients (2013)
STEP (Society of Trust and Estate Practitioners) Advanced Certificate in International Succession and Probate (2014)
STEP (Society of Trust and Estate Practitioners) Certificate in Foundations (2015)
CLTI Advanced Certificate in Fund Administration (2015)
Hong Kong Institute of Arbitrators Fellowship Assessment Course and Examination (2011)


Professional Memberships

Fellow of the Hong Kong Institute of Arbitrators (FHKIArb)
Member of the Hong Kong Bar Association Committee on Competition Law
 
Languages 
English (native); Mandarin Chinese (HSK Level 8 Grade A); basic Cantonese