Senior Counsel Eric Kwok SC and Lawyer Counsel Barrister Vivian Ho Sued for Serious Misconduct and Negligence - 資深大律師郭棟明及大律師何慧嫻被控嚴重失職及疏忽
http://orientaldaily.on.cc/cnt/news/20131117/00176_041.html
中原地產多名高層之前被廉政公署刑事檢控，指他們涉嫌支付非法回佣予交易客戶，眾被告○八年在區院被裁定串謀詐騙等罪成立及判囚；其中一名總經理潘志明被判囚廿二個月，他在服刑十四個月後於高院上訴得直，撤銷定罪後重返中原工作。他昨日入稟高院民事指控在原審時代表他的資深大律師郭棟明及律師行失職、疏忽及違反聘約，要求對方賠償他損失，但未有透露金額。
原告潘志明（四十九歲），事發時是中原（工商舖）商舖部總經理，現時擔任中原（工商舖）營運總監；三名被告依次是翁宗榮律師行、資深大律師郭棟明及大律師何慧嫻。
上訴庭：令原告得不到公平審訊
原告於○八年受審時，控方指他涉嫌在兩宗物業交易中詐騙中原，指其私人公司是交易介紹人，向中原申領約六十萬元介紹費後，將錢交予買家羅家寶的職員作回佣。惟上訴庭判他脫罪時指，羅家寶曾向廉署錄口供指其職員毋須批准便收取回佣；另外，中原集團主席施永青亦曾供稱，指若知收回佣者是獲僱主同意，就算同事填報的介紹人是虛假也會照批介紹費，不認為這是詐騙。
雖然原審法官在判決時批評中原此種做法，是鼓勵貪污風氣及對旗下員工的監察未夠嚴謹；惟上訴庭指，原審時若原告律師有向施永青提出羅家寶的供詞，便會成為原告沒有詐騙的有力證據；但原告律師並沒這樣做，這屬嚴重失職令原告得不到公平審訊，因此撤銷原告的定罪。
原告在入稟狀指，原審時控方在案件開審前大半年，已表明有羅家寶的供詞但不會呈堂；但被告一方卻告訴原告，羅家寶的供詞「無足輕重」而無向控方索取。另外在施永青作供後，被告一方亦無向原告解釋施的供詞對其抗辯有關鍵幫助，亦無傳召羅做辯方證人等，原告認為被告此舉屬失職。
案件編號： HCA 2221/2013
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http://www.scmp.com/news/hong-kong/article/1358092/centaline-property-agent-sues-law-firm-barristers-who-represented-him
A property agency manager has sued a law firm and two of its barristers (Senior Counsel Eric Kwok SC and Barrister Vivian Ho), claiming they failed in their duty to defend him against allegations that he paid kickbacks to secure a deal.
Poon Chi-ming, formerly a general manager at Centaline Commercial, was convicted in June 2008 of two counts of conspiracy to defraud in the District Court and jailed for 22 months.
The ruling was overturned on appeal and he was released after spending 14 months in jail.
Poon, now chief operating officer of Centaline Commercial, filed the High Court writ on Friday against the law firm, Simon C.W. Yung & Co, and the barristers, Eric Kwok SC and Vivian Ho.
Poon and two other agents were found guilty of conspiring to deceive Centaline into paying HK$600,000 in kickbacks to a private company in two transactions between 2005 and 2006. They had claimed the money was paid as referral fees to an employee of a company buying a commercial property.
Lawyers Counsel Barristers Eric Kwok SC and Vivian Ho represented Poon in the District Court trial.
Poon hired another legal team to represent him on appeal. The Court of Appeal ruled in his favour and quashed his conviction in March 2010. Poon was released after spending 14 months in jail.
The appeal court judges found that the Barristers Eric Kwok SC and Vivian Ho had failed to make good use of a witness statement, meaning Poon missed out on a fair trial.
The statement was made by billionaire Law Kar-po, the boss of the company which was buying the property. Law told the Independent Commission Against Corruption that he had known about the deal and allowed his employee to accept the referral fees from the property agent.
The statement had been given to Poon's lawyers before the trial.
The appeal court found the defence counsel Barristers Eric Kwok SC and Vivian Ho had failed to use the statement when questioning Centaline chairman Shih Wing-ching. Shih was a witness in the trial and testified that if he knew the firm had agreed to the employee receiving referral fees, it would have paid the commission and not felt it had been deceived.
In the writ, Poon claims that Lawyers Counsel Barristers Eric Kwok SC and Vivian Ho, and the law firm Simon C Y Yung & Co Solicitors, failed to appreciate that Law's statement contained crucial evidence.
He also says they failed to instruct Poon to call Law and other related parties as defence witnesses.
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http://hk.apple.nextmedia.com/news/art/20131117/18511708
中原工商舖營運總監潘志明，因涉提供非法回佣，08年被判監22個月。潘其後就定罪提出上訴，上訴庭當時批評原審辯方律師嚴重失職，故判他上訴得直推翻定罪，但潘已白坐冤獄14個月。潘志明指控原審時代表他的資深大律師等律師團疏忽失職，日前入稟高等法院向他們索償。
涉疏忽失職累事主判囚
於案發時任職中原工商舖總經理的潘志明（50歲），昨表示案件已進入法律程序，不便作出回應。而三名被告則為翁宗榮律師行、資深大律師郭棟明，及大律師何慧嫻。郭昨表示不予回應。
入稟狀指，三名被告代表潘志明在該宗串謀詐騙案進行辯護，但他們疏忽失職，未有留意證人羅家寶的供詞，對潘的辯護起關鍵作用，在審訊中沒有引用羅的供詞，或傳召羅作辯方證人。
潘志明涉嫌在兩宗物業交易中，騙取中原向買家代表發放60多萬元佣金。
上訴庭曾指，辯方代表律師嚴重失職，未有提及買家代表的僱主羅家寶，曾表示准許員工收取回佣的證供，即收回佣行為是合法的。而中原主席施永青，在原審時亦表示只要是對公司有利，而買家的僱主是容許收回佣，亦不算詐騙中原。
案件編號：HCA2221/13
ReplyDeletehttp://www.thestandard.com.hk/section-news.php?id=210959&story_id=50042399&con_type=1&d_str=20190823&sid=4
Incompetent Hong Kong Barrister Mark Sutherland Convicted of Misconduct and Suspended for 3 Years!
https://barristermarksutherland.blogspot.com/2019/08/incompetent-hong-kong-barrister-mark-sutherland-convicted-of-misconduct-and-suspended-for-3-years.html
http://www.hklii.org/eng/hk/cases/hkca/2019/939.html
THE BAR COUNCIL v. MARK RICHARD CHARLTON SUTHERLAND [2019] HKCA 939; CACV 365/2019 (15 August 2019)
4. On 9 July 2018, the Bar Council laid complaints of misconduct against the respondent. The substantive hearing of the disciplinary proceedings was held on various days between September and November 2018. The respondent applied to the Tribunal repeatedly to adjourn the proceedings. All his applications were turned down. We will return to this topic.
5. On 2 April 2019, the Tribunal handed down its statement of findings, finding the respondent guilty of the five complaints laid by the Bar Council. In summary, these complaints were:
Complaint 1
This alleged that the respondent asked questions and made statements during the Trial, which were intended to insult and/or annoy the witness or any other person or otherwise were an abuse of counsel’s function, contrary to para 131 of the Code of Conduct of the Bar (“the Bar Code”).
Complaint 2
This alleged that the respondent failed to use his best endeavours during the Trial to avoid unnecessary expense and wasting the court’s time by his questioning of witnesses, contrary to para 133 of the Bar Code.
Complaint 3
This alleged that the respondent knowingly misled the court in relation to various procedural matters which arose during the Trial and engaged in conduct in the pursuit of his profession, which is dishonest or which may otherwise bring the profession of barrister into disrepute, contrary to paras 130 and 6(b) of the Bar Code.
Complaint 4
This alleged that the respondent engaged in conduct during the Trial which was discourteous to the court, and/or which may bring the profession of barrister into disrepute and/or failing to observe the ethics and etiquette of his profession, contrary to paras 133, 6(b) and (c) of the Bar Code.
Complaint 5
This alleged that the respondent had engaged in conduct in court during the Trial which may bring the profession of barrister into disrepute and which was prejudicial to the administration of justice by failing to defend his client competently in accordance with his instructions, contrary to paras 6(b) and (d) of the Bar Code.
6. On 18 July 2019, the Tribunal gave its reasons for sentence and ordered the respondent be suspended from practising as a barrister for a total of 36 months and to pay the Bar Council costs of the proceedings and of any prior inquiry on a full indemnity basis. The Tribunal also made orders for the publication of the statement of findings and reasons for sentence.