@eLaw.com.hk by yip tse & tang, solicitors + notaries 葉謝鄧律師行

Barristers

Barristers are one of the two streams of the legal profession. The other stream is solicitors.

The traditional work of barristers is advocacy - they present cases in court, where their ability to speak and to think quickly "on their feet" as the evidence unfolds is what they are skilled in. Barrister will be "briefed" (instructed) by a solicitor - it is the solicitor who first contacts the client and has initial conduct of the case. However, the barrister is to a fair extent independent of the solicitor and can take an independent judgment as to how to conduct the case. Barristers are occasionally advocates in magistrates’ courts, but they mainly work in the District Court and Family Court (it is possible to have a solicitor advocate), the High Court or in appeal courts.

Related to this advocacy work, barristers also deal with advice on litigation and the drafting of documents ("pleadings") related to litigation.

Most solicitors are graduates with a law degree. They must also undertake professional training both by a one year studying either at the University of Hong Kong or the CityU for the Postgraduate Certificate in Laws. They then go through a pupillage with a qualified barrister. More senior barristers can apply to become a Senior Counsel ("take silk").

Barristers are all sole practititoners, but they often share premises ("chambers") and administrative staff. The barristers’ profession is regulated by the Hong Kong Bar Association which deals with matters such as training, qualifications and complaints.

Solicitors

Solicitors are one of the two streams of the legal profession. The other stream is barristers.

Solicitors undertake most of the work in magistrates’ courts, Family Court and District Courts - both preparation of cases and also advocacy.

Litigation is only a small part of the work of the solicitor’s profession as a whole. Some are involved in commercial work relating to business eg dealing with commercial transactions, corporate matters, land, share and other property dealings. There is also a large amount of private client work which does not involve any litigation (if all goes to plan!) such as the conveyancing of houses, making wills, advising on tax matters and so on.

Solicitors May Advertise

Solicitors in Hong Kong are permitted to advertise their business. It is common to find solicitors putting up advertisements on newspaper, TV and mini-bus. They provide legal services to individuals who look for affordable rate of legal fees. Therefore, it is not surprising to find to lawyer who is prepared to draft and attest a deed poll for change of a person's name for $500. Some law firms set up sub-offices serving the needs of local clients.

Most solicitors are graduates with a law degree. They must also undertake professional training both by a one year studying either at the University of Hong Kong or the CityU for the Postgraduate Certificate in Laws. They then have to undergo two years of training contract with a solicitor in practice.

Solicitors operate in Solo or partnerships.

The solicitors’ profession is regulated by the Hong Kong Law Society which deals with matters such as training, qualifications and complaints. Most law firms are very small in size. They have 3 to 5 solicitors and not more than 20 clerical staff in support. Partnerships having 5 or more partners or firms with more than 10 solicitors are regarded as big firms.

Discretionary Trust

What is a Discretionary Trust?

Discretionary trusts are used by families to make long-term financial provision for sons and daughters. The key point about a discretionary trust is that funds or property put into the trust do not count as assets for the purposes of benefits or in terms of the responsibility of the local authority or health authority to fund care. This is because the funds put into a discretionary trust do not belong to the beneficiaries but to the trust.

Why is it called a Discretionary Trust?

This kind of trust is administered by trustees. The deeds which set up the trust give the trustees discretion as to how the funds are to be used. The intended beneficiaries have no rights to either the income or capital held in trust. To work in terms of financial planning for children an additional characteristic is usually that the trust is set up for the benefit of a group of people, not a single person. This can be a 'class' of beneficiary of whom the son or daughter is a member, for example all people with Downs Syndrome or with an Autism Spectrum Disorder.

Can I put my house into a Discretionary Trust?

Yes. Your home is an asset and can therefore be put into trust. This is commonly done through setting up a trust in the parents' will which makes provision for the property to be put into trust. There are several reasons why this may be a good idea.

First, the trustees can undertake the task of managing and maintaining the property. This is particularly important where the disabled person may lack legal capacity and therefore would be unable to manage money and to contract for the maintenance services.

Second, because the property is put into trust it does not belong to the individual and therefore cannot be subject to a legal liability owed by a beneficiary.

Trust, Trustees, Trust Deed, Discretionary Trusts

History of Trusts

They were first established by barons, knights and other wealthy nobles during the Crusades, and were a way of ensuring their land and possessions would be disposed of in accordance with their wishes should they become over familiar with Turkish steel.

So, while there are many varieties of trust, they all share the same ultimate aim: to ensure that assets such as land, money, shares and even antiques (collectively known as the "trust property") are passed on to the "beneficiaries" in a way that the "donor" would want.

Trustees

The legal owners of the "trust fund" are known as "trustees", and it is they who administer the fund on a day-to-day basis and ensure that tax is paid out of it.

They also decide where to invest the trust's assets, although this must always be in the best interests of the beneficiaries.

Usually, the trustees will seek professional advice to ensure the assets are wisely invested from both a tax and asset allocation perspective.

Trusts can be used in all kinds of circumstances such as:.

When someone is unable to handle their own affairs because of incapacitation If a person wants to distribute land or assets to loved ones while they're still alive Or, like many hapless crusaders, under the terms of a will. But there is more. Individual trusts can have attractive tax advantages and are often used to reduce inheritance tax and for other tax planning purposes. Hong Kong does not have inheritance tax now. Setting up a trust for this tax saving reason is no longer necessary.

Legal advice and Trust Deed

However, bear in mind that trusts and their tax treatment can be highly complicated and need to be discussed at greater length with an expert.

Anyone interested in setting up a trust will need a solicitor to draw up the "trust deed" and will have to appoint trustees.

At least two is the norm. Usually, one trustee is a professional familiar with trusts - a lawyer, for example - while the other is a family member or relative.

Here, we focus on three types of private trust that are widely used to manage and protect a family's wealth.

Discretionary trusts

Probably the most common private trust is the discretionary trust.

The name derives from the trust's open structure, as numerous beneficiaries can be named in the "trust document" and the donor does not have to stipulate at outset who will be receiving what and when.

Discretionary trusts are additionally flexible in that the trustees can add or remove beneficiaries, including those that are unborn, at any point.

It is the role of the trustees to decide when to allocate assets or income to one or more of the beneficiaries, and, of course, how much.

Interest in possession trusts

Interest in possession trusts (sometimes called "life interest trusts") are often created as part of wills and are structured in such a way that the surviving spouse, or "life tenant", will have a right to receive an income for the rest of his or her life, or for a fixed period at least.

A male divorcee, for example, may want his second spouse to receive an income on his death but for his children to then receive the capital on her death.

This income will be paid once the trustees have deducted the relevant tax, after which a further liability or reclamation of tax (minus the dividend tax credit) may be apparent depending on the individual beneficiary's circumstances.

However, the spouse will not be entitled to the trust property itself, which will usually be passed on to any children.

Accumulation and maintenance trusts

Accumulation and maintenance trusts are often used by grandparents to support their grandchildren.

For example, they may be created to cover a child's education and general living costs, with any income that remains left to "accumulate" and then added to the trust property.

In the early years, while the grandchildren are young, accumulation and maintenance trusts are run very much like a discretionary trust.

However, the grandchildren usually become entitled to the trust property between the age of 18 and 25, and at this time the accumulation and maintenance trust turns into an interest in possession trust.

In other words, the income is now given to the beneficiaries as of right.

The tax treatment on this type of trust works in the same way as for discretionary trusts, until the beneficiaries become entitled to the income and capital.

Duplicating Teacher's Speech is Not an Offence

@eLaw Focus. Author: Thomas Tse. Partner, Yip, Tse & Tang

A school-cert candidate was found having duplicated the sound recording of the teaching content of a tutor. Customs officers in Hong Kong arrested him for investigation and no charge had yet laid. Declining cost and increasing convenience of the recording media make content duplication unprecentedly common among youngsters. MP3 and MPEG are the most popular formats for digital sound recording and video.

The arrested school-cert candidate would not have been so arrested if he had not placed the duplicated contents for sale on an auction site. Duplicating copyright works such as sound recording for self-use is not an offence. Distributing it or placing it for sale is however liable to criminal prosecution.

Speech not recorded on a media has no copyright. This is because copyright protection requires 'fixation'. Students are free to record but as a matter of coutesy should seek the teacher's permission. Students should however be careful. Although the speech itself has no copyright, the speech might contain contents which are copyrighted such as a lyric or an article. In any event, never put anything on sale or make further duplicates. Students should not place anything materials on the Internet for people to download or listen. This can cause trouble.

About @eLaw Focus:

@eLaw Focus is a news column on current electronic laws issues. It is provided by lawyers of Yip, Tse & Tang, a law firm specialising on eLaw practice. For further enquiry: info@elaw.com.hk

About @eLaw.com.hk: Hong Kong Technology Law Portal managed by Hong Kong Lawyers

@eLaw.com.hk contains information about technology laws of Hong Kong and other Internet or computer related legal information. It is managed by Hong Kong lawyers and the contents mainly relate to Hong Kong laws.

It covers areas about Hong Kong laws such as e-commerce laws, software licensing, domain name disputes, intellectual property rights, defamation, technology, source code escrow deposit, data protection and privacy, telecommunications and Internet liabilities.

Thomas Tse is the main architect of @eLaw.com.hk assisted by colleagues, Raymond Tang, Pierre Sun. He is the author of the Chinese book on Hong Kong E-Law. Mr. Tse is a partner of Yip, Tse & Tang, which is a law firm very famous on practice of traffic accident claims, workplace injuries, bankruptcy, IVA and eLaws. The firm's Technology and Telecom Practice Department was established in 1998.

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Government immigration department streamlines smart ID card applications

The Immigration Department of the Hong Kong Special Administration Region has chosen to use FileNet's ECM solution to help streamline its application process for a recently launched Smart ID Card.

Under a new immigration identification system, Hong Kong's seven million residents are expected to replace their traditional ID cards with new multi-application smart identity cards by 2007. With the Smart ID Cards, holders will be able to enjoy a variety of government electronic services in a safe and secure manner.

Apart from immigration applications, a smart identity card can also support other value-added non-immigration applications, including e-Cert - digital signature certification - and library cards.

The Smart Card project comprises three major components:

conversion of all historical ID applications and related records
into digital images to provide fast, online retrieval. These are currently
kept on microfilm and index cards.

development of a new, multi-application smart card and supporting
high-performance computer system to deliver security and resilience

territory-wide ID card replacement by 2007

It is reported that FileNet's Image Services is a core component of this project. In addition to providing the Immigration Department with a high-performance, high-capacity system for managing the capture, storage and retrieval of all historical ID applications and related records, it is also fully compliant with the government's exacting auditing procedures.

According to FileNet, integrating seamlessly with other enterprise applications and systems at the Hong Kong Immigration Department, FileNet's ECM solution enhances overall efficiency since it enables Immigration Department staff to retrieve historical ID records instantly without having to wait for microfilm or index cards to be found and dispatched from archives. This will help significantly increase the speed at which the new cards are processed. With the ECM solution in place, the Department now has a secure and permanent store of critical immigration information to safeguard from disaster and misuse.

'The Smart Card project is an ideal showcase for FileNet's powerful ECM capabilities - in this case, managing the vast amount of historical data that must now be made instantly accessible to the Immigration Department' said Hugh Sutherland, vice president of Asia Pacific Operations, FileNet Corporation. 'It is yet another example of how FileNet can help organizations manage content by automating, simplifying and streamlining their business processes.'

For further information about FileNet, please visit their website at FileNet.com

Television Broadcasts Ltd. V. Hemmul aka Huang Zhi Ming Claim Number: FA0111000102521

PARTIES: The Complainant is Television Broadcasts Ltd., Kowloon, Hong Kong (“Complainant”). The Respondent is Hemmul aka Huang Zhi Ming, Guangzhou City, Guang Dong Province, CHINA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME: The domain name at issue is , registered with Dot.tv.

PANEL'S FINDINGS:

1. Complainant operates a commercial television station in Hong Kong.

2. Complainant has used the letters, TVB as its trademark since 1967.

3. Complainant registered trademark, TVB under the trademark laws of Burma/Union of Myanmar; Cambodia, France; Germany; Hong Kong; Japan; Malaysia; Panama; Peoples Republic of China; and South Africa. All of the trademark registrations were prior to Respondent's registration of .

4. Complainant states that it owns and operates a web site under the domain name, tvb.com since 1999. No evidence was presented to show this to be true. But since it is not disputed by Respondent, it is taken as admitted.

5. Respondent registered the domain name, on May 20, 2001.

6. Respondent is a resident of the Peoples Republic of China and was a resident on May 20, 2001.

7. Respondent was on constructive notice of Complainant's right in its trademark, TVB, on account of the trademark registration in the Peoples Republic of China.

8. Complainant has rights and interests in the trademark, TVB.

9. Respondent has no rights and interests in the domain name .

10. The trademark and disputed domain name are identical.

11. Respondent registered and is using the domain name, , in bad faith.

DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

Identical and/or Confusingly Similar

Complainant shows that it has used the trademark, TVB, since 1967. Complainant shows that it registered the trademark, TVB, in a number of countries including the Peoples Republic of China. The registrations all were undertaken prior to Respondent's registration of the disputed domain name. Complainant clearly has rights in the trademark, TVB for the purposes of the requirements needed to proceed on this issue.

The trademark, TVB, is identical to the domain name, . Internet level indicators “such as ‘tv’ do not affect the similarity or identicality between the mark and a disputed domain name.” see Don Cornelius Productions, Inc. v. Fred Fluker d/b/a Futurevision, DTV2001-0026 (WIPO Dec. 7, 2001). see also Toronto Star Newspaper Ltd. v. Elad Cohen, DTV2000-0006 (Jan. 22, 2001), holding that the domain name “tstv.tv” and the trademark TSTV are identical. see also HSBC Holdings Plc v. Iain Rayner, DTV2001-0021 (WIPO Nov. 5, 2001); COMSAT Corporation v. TELE Satellite, DTV2001-0011 (WIPO June 7, 2001).

Complainant prevails on this issue.

Rights or Legitimate Interests

Complainant shows that it has used the trademark, tvb, since 1967 in its operation of the television station in Hong Kong. Complainant registered the trademark in a number of countries including the People's Republic of China. It can be inferred that Complainant has never licensed or authorized Respondent to use the trademark. It can be inferred that there is no relationship between the parties, business or otherwise, that would permit Respondent to use the trademark, tvb. Complainant contends that it has exclusive right to use the mark. see America Online, Inc. v. Tencent Communications Corp. FA93668 (Nat. Arb. Forum Mar. 21, 2000). Respondent makes no claim that he has ever been known as tvb or tvb.tv.

As a result of Complainant's showing, and Respondent's apparent lack of rights and legitimate interests in the domain name tvb.tv, the burden must shift to Respondent to demonstrate Respondent's rights and legitimate interests in the domain name. see Clerical Med. Inv. Group Ltd v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000); MedStaff Alternatives, Inc. v. Dustina M. Bennett, FA97260 (Nat. Arb. Forum July 11, 2001).

Respondent may demonstrate his rights and legitimate interests in the domain name by any of the methods set out in Paragraph 4(c) of the Uniform Domain Name Dispute Resolution Policy. Respondent makes no attempt to show rights and legitimate interests in the domain name. Respondent merely contends that Complainant had not registered its trademark in Tuvalu nor taken active steps to put the registrar, DOT TV, on actual notice of Complainant's trademark rights. Complainant is not required to perform either of these acts to maintain its trademark rights. Complainant registered its trademark in the People's Republic of China, the country in which Respondent is a resident.

Respondent, having undertaken to show none of the factual situations that would establish rights and legitimate interests in TVB or , it must be found that Respondent has no rights or legitimate interests in the domain name. Complainant prevails on this issue.

Registration and Use in Bad Faith

It is Complainant's responsibility to show bad faith in order to prevail in a domain name dispute. See Paragraph 4, Uniform Domain Name Dispute Resolution Policy. Complainant's pleadings and submissions are so terse and incomplete that it makes it difficult to ascertain the true facts and circumstances of this case. Respondent's submissions are even more terse and incomplete. However, it is clear that any use of by Respondent on the Internet would create a situation where it would be “inconceivable that the respondent could make any active use of the disputed domain name without creating a false impression of association with the Complainant.” Sony Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000). See also Singapore Airlines Ltd v. P & P Servicios de Communicacion S.L., D2000-0643 (WIPO Aug. 29, 2000). That confusion is all the more evident when it is recognized that Complainant operates a television station. Any use on the Internet of in the areas of the People's Republic of China and Hong Kong, is bound to cause confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's web site or location or of a product or service on Respondent's web site or location. See Paragraph 4(c)(b)(iv), Uniform Domain Name Dispute Resolution Policy. The question remains whether Respondent will intentionally attempt to attract, for commercial gain, Internet users to his web site or other on-line location. Respondent makes no attempt to show what he intends to do with the domain name. But upon notification by Complainant to Respondent of the possible trademark infringement between the trademark and the domain name, Respondent shut down the web site.

Respondent admits the following: “But this registration is not on purpose, and this is ratified by Television Broadcasts Limited in the communicate. We admit that we will transfer the domain name in dispute to Television Broadcasts Limited preferentially without damnify. And this attitude is ratified by Television Broadcasts Limited either…after realizing the attitude of the Television Broadcasts Limited, I have shut down the website…” Respondent states that he did not know of Complainant's trademark rights when the domain name was registered. The domain name was not registered “with malice” Respondent contends. There is no evidence to find “malice” in this case, and none is found. Malice has no part in domain name dispute proceedings.

The admission of Respondent that he will transfer the domain name in dispute to Complainant “preferentially without damnify” is taken to be an admission that the domain name infringes on the trademark of Complainant and that the use of the domain name will cause the situation proscribed by Paragraph 4(b)(iv). Under these circumstances, it is found that the elements of this section have been met. Complainant prevails on the bad faith issue.

DECISION: TRANSFER ORDERED

IT IS HEREBY ORDERED THAT THE DOMAIN NAME, , NOW REGISTERED TO THE RESPONDENT, HEMMUL ALIAS OF HUANG ZHI MING, BE TRANSFERRED TO THE COMPLAINANT, TELEVISION BROADCASTS LTD.

Dated January 24, 2002

Types of Risks of E-Business

According to Marsh, Inc. a leading provider of cyberinsurance services to e-businesses, the following are most obvious types of risks for conducting online businesses:

Damage, Theft, or Disclosure of Electronic Information. Information security (data integrity, confidentiality, and availability) is critical to the expanding e-Financial Services industry. Sensitive transactions, such as customer payments via credit or debit card, health care information, etc. require a high degree of security and confidentiality.

Loss of Service. In cyberspace, the reasons for Web outages are largely the result of "intangible" or human events, and less likely due to uncontrollable causes such as fire or earthquake.

Authentication and Non-Repudiation. Especially in business to business e-commerce, both parties must be properly authenticated. A digital signature may be required to form a binding contract and two essential questions must be answered electronically: Can we with confidence confirm whom we are dealing with and can we prove that they did in fact make the transaction?

Computer Fraud. The costs of network/Internet fraud extend far beyond the fraud or crime itself. Financial losses alone may result from the need for network downtime while locating and fixing the security breach, the need for an emergency audit, public relations damage control, increased fraud insurance premiums, and loss of business.

Privacy. Concerns about privacy are increasing daily from regulators worldwide. The issue bridges confidentiality of information from a security standpoint and electronic protection of sensitive digitized data. The critical issue is protection of information from an identifiable person.

Malicious Code. Despite the advances in anti-virus software, this remains a serious global cause of data damage and destruction, disruption in service, and destruction of computer components.

Legal and Regulatory Uncertainty. At present, the extent to which banking, insurance, securities, and other laws will be affected by the Internet is largely unknown.

Intellectual Property, Content, and Advertising Infringement. Everything on a Web site can be copyrighted as intellectual property. Even business processes over the Web today can be patented. The Internet creates new exposures for content and advertising that are unlike any other medium; although it is complicated by lack of global uniformity in managing these issues.

Virus Attack and Distributed Denial of Service Attack (dDoS)

The attack by virus poses as an immiment danger to on-line financial services. It would result in downtime on the on-line operation and loss towards customers' data and more important loss of the providers' goodwill and business. Besides, it may generate legal liability towards the financial services providers, stock brokers or financial institutions are all alike.

Malicious virus like Kournikova, Melissa and I Love You are real threats to on-line trading businesses. The viruses can tie up computer networks and crashed e-mail servers resulting to downtime of the businesses and hence huge losses. The on-line merchants are potentially liable for losses owing to consumers or businesses visitors to the web-sites. That is why in recent years, security and legal liability have become one of the major areas of concern to system administrators and business managers. Cyberinsurance can also serves as a way to mitigate the risk among on-line merchants. However, cyberinsurance is far from being a mature product in the cyberspace world. According to Marsh Inc., a leading cyberinsurer for e-business insurance have given a rather comprehensive list on risks of e-businesses. Damage, theft, loss of service remain to be the leading items of concern of e-business participants.