Written by Timothy Harry and Dr Nisha Mohamed

There have been two recent decisions of the Supreme Court in England which it would be useful for any Hong Kong practitioner to consider when dealing with the fundamental questions of (1) whether the relationship is one to which vicarious liability principles apply and (2) whether, even if it is such a relationship, the employee’s wrongdoing is such that liability should attach to the employer.

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Commentary by Tina Mok and Adrian Lo

The Court of Final Appeal (“CFA”) on 11 March 2020 handed down its judgment in HKSAR v Cheng Wing Kin [2020] HKCFA 3 examining the meaning of “corruptly” in s.7 of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554) (“ECICO”).

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Congratulations Dr Christopher To who has been honoured with a 2019 Top 10 Award for Arbitrators and Mediators in Asia Pacific by the Bali International Arbitration and Mediation Center.

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The Court of Appeal upholds the principle of requiring a warrant to access contents of a mobile phone whilst clarifying warrantless searches can only be conducted with reference to the concept of “reasonable practicability” as submitted by Dr Gerard McCoy QC, SC, and Albert N B Wong (for the 2^nd Interested Party).

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Timothy Harry  appeared in Popely v Popely [2020]EWHC 667 (Ch), where the High Court in England was tasked to consider whether to make a third party costs order against someone who was not a party to the proceedings but who it was said was the driving force behind the litigation, which involved allegations of fraudulent misappropriation. The equivalent provisions in Hong Kong are section 52A(2)of the High Court Ordinance(Cap.4) and RHC O.62, r 6A. The Court made the Order for costs.

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Timothy Harry appeared in Homes of England Ltd v Horsham Holdings Ltd [2019] EWHC 2429 (Ch), where the Companies Court in England considered the application of American Cyanamid principles in the context of the equivalent unfair prejudice principles in a minority shareholders’ petition.

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The Chief Justice on 25 March 2020 responded to concerns about the continuing general adjournment of legal proceedings (known as “GAP”) during this public health crisis by foreshadowing the greater use of technology.  The use of technology can prevent both the unnecessary gathering of crowds, and also assist in managing the significant backlog of cases arising from the general adjournment of courts.

We have closely watched the announcements and updates in anticipation of this health crisis inspiring new initiatives that will allow the legal profession to continue to operate during these uncertain times. Though there has been a slow transition towards the use of technology by the judiciary, Gilt Chambers has adapted and embraced new ways of working to ensure we remain available to our colleagues and clients. To read more about this in depth see the full article linked below.

Update on Court closures and future proceedings by technology

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In OCBC Wing Hang Bank Ltd v Kai Sen Shipping Company Ltd [2020] HKCFI 375, the Hong Kong High Court considered an application by the defendant shipowner for a stay of the Hong Kong proceedings to arbitration. In a decision containing an orthodox analysis of the rules for determining the governing law of the arbitration agreement, the incorporation of arbitration agreements into bills of lading by reference, and submission to arbitration, the Court denied the application.

Nick Luxton counsel for the successful plaintiff back in the application, and member of Gilt Chambers wrote a review of the case on arbitration.site which can be found at this link

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