Formal Complaint Against Barrister Gary CC Lam (林展程大律師) of Des Voeux Chambers, 38/F, Gloucester Tower, The Landmark, Central, H.K.
I am lodging a formal complaint, as a member of the public, against Hong Kong Barrister Gary CC Lam (林展程大律師) of Des Voeux Chambers, 38/F, Gloucester Tower, The Landmark, Central, H.K.., for his blatant breach of paragraphs 10.29 & 10.30 of the Bar Code, in that he has failed to act with candour and independence in the interests of justice, and knowingly deceived or misled the Court, in his ex parte Court Application before DHCJ MK Liu on 18 February 2021. Alternatively, he was incompetent in his professional activities, and breached paragraphs 4.1 (d) of the Bar Code in the same matter.
The material facts had been set out in [2021] HKCFI 836 (HCMP 2178/2020) - https://legalref.
1. If there were a prize to be awarded to the application most riddled with grave errors and egregious abuse, the ex parte interlocutory injunction application made in this case might well win it...... 7. Because of what follows, it is appropriate that I point out at once that neither Mr Paul Shieh SC nor Mr James Man were involved at the ex parte stage. Only Mr Gary Lam and the solicitors instructing him, So, Leung and Associates (“SLA”), were involved at the ex parte stage...
... 59. A transcript of the ex parte hearing has been obtained. It identifies that the Deputy Judge had only received the papers at about 4:25pm, and he straightaway told Mr Lam that he had only read Mr Lam’s skeleton submissions, an unspecified part of my November 2020 Judgment and the draft order – “that’s all”. He made it very clear he had a “very, very limited understanding of the case”, but Mr Lam told him that the materials he should be aware of for the present purpose were “also limited”. Against the context which I have set out above, that is a rather startling submission. Later in the hearing, the Deputy Judge made clear that he had not even read any of the affirmations, but Mr Lam did not direct him to those affirmations so as to take him through them or suggest that the Deputy Judge might stand down for a few minutes to read them.
60. Understandably, an early question posed by the Deputy Judge was whether the application was made with notice or without notice. Mr Lam told him it was made “with notice”. As pointed out above, first he suggested notice had been given to Eagle Legacy, Oceana Glory and Zhu at about 4pm, by fax to their solicitors. He also said that Convoy and its solicitors had been given notice, by fax at about 4:20pm to 4:30pm. I assume Mr Lam would have said those things on instructions, but they were not true, and no one present with him in court appears to have corrected him.
61. After the Deputy Judge suggested that one way to proceed might be simply to allow the AGM to go ahead, and if a resolution was passed which had an adverse impact on Chen, he might come to court to apply for an injunction to restrain Convoy from carrying out that resolution, Mr Lam submitted that that would not work where “R13 to 15 … in effect are acting in concert with the directors”. (This submission is slightly ironic in light of the inter partes summons which was later issued – see below).
62. Mr Lam’s submissions focused on the fact that Chen’s votes had not been counted at the EGM the day before, albeit a little later Mr Lam also explained briefly what had happened at the EGM by reference to not counting Chen’s votes yet counting the votes of Eagle Legacy, Oceana Glory and Zhu. Mr Lam described that as the “change of circumstances” since my November 2020 Judgment, as it was now well-known that the Board would not count Chen’s shares while still counting the others “without much explanation, apparently suggesting some … unfair treatment … between the two camps”. The clear implication in that submission was that nothing relevant as to any “change of circumstances” had happened in the period between my November 2020 Judgment and the EGM on 17 March 2021, though that was plainly incorrect (see below).
63. There followed some discussion as to what difference would be made depending on whose shares were or were not counted. When the Deputy Judge pointed out that there was no evidence on that point, Mr Lam undertook “if necessary” for someone to give that evidence. The undertaking was later recorded in the ex parte Order.
64. It is clear from the Deputy Judge’s question about the potential difference in voting result that he asked it on the basis that Chen would try to vote but would not be allowed to vote. That might have been a suitable occasion on which to have informed the Deputy Judge of the relevant and material fact that the person holding the proxy for the vast majority of Chen’s shares was not at the AGM, and would not be going to the AGM, as she was in court. Therefore, although complaining that his votes would not be counted as a result of alleged bad faith, Chen was not actually even making any attempt to vote his shares and have them counted, so that no question of any motive in excluding them could possibly arise on the facts. Unfortunately, the Deputy Judge was not provided with this information.
65. There was no explanation in Mr Lam’s skeleton argument or in any oral submission made by him at the ex parte hearing as to the legal basis upon which Chen might seek to deprive all of the shareholders, including the 13th to 15th respondents, from having an AGM. This might be thought particularly problematic when Chen chose not to seek to have his votes counted, and where there has been no challenge to the validity or legality of the 13th to 15th respondents’ votes (and where Chen’s own challenge to their votes is on a very different basis).
Therefore, Hong Kong Barrister Gary CC Lam (林展程大律師) of Des Voeux Chambers either dishonestly and dishonourable misled Judge Liu on purpose, or he was so flagrantly incompetent his application was "riddled with grave errors and egregious abuse" by reason of his own flagrant incompetence. Either way he breached the Bar Code and should be penalized for it.
Please prosecute Hong Kong Barrister Gary CC Lam (林展程大律師) of Des Voeux Chambers for professional misconduct accordingly.
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