Legal Proceedings - Issue 26

Senior magistrate from Trinidad and Tobago after 20 year legal battle vindicated by the privy councilSenior Magistrate Felix Durity was suspended in August 1989 by the Judicial Legal Services Commission in Trinidad and Tobago. It had been reported that he had been guilty of misconduct. Many months elapsed before the Commission referred the matter to an investigating officer. Mr Durity took exception to the way the Commission dealt with the case and his first complaint was that the suspension was mis-conceived and the misconduct that was alleged against him related to decisions that he took in the performance of his judicial duties as a magistrate. The second complaint was that he was treated unfairly by the Commission because there was a delay of about 33 months before charges against him were investigated. The issue was whether or not the Appellant was entitled to constitutional relief for these complaints.Mr Durity went through many stages in his fight for justice and had twice come before the Privy Council in 2002 and 2003. He had remained under suspension for nearly 7 years from August 1989 to May 1996. In April 1997 he took early retirement.The suspension had its origin in a bail application that was made to the Appellant in his judicial capacity in February 1989. The advice to Her Majesty was given by Lord Hope of Craighead in favour of Mr Durity setting aside the decision of the Trinidad and Tobago Court of Appeal and restoring Orders made by a previous trial judge. The Attorney General of Trinidad and Tobago was ordered to pay the costs of Mr Durity.Mr Durity was delighted at the outcome but saddened at the blight on his career.Is the Englishman’s Home still his Castle?When the expression “an Englishman’s Home is his Castle” was first used, it was meant that it would be safe from creditors and represented all that was great about capitalism in the West. The concept has been eroded by tax in the form of Inheritance Tax, divorce, insolvency, and last but not least, by recession.From a wealth creation point of view, amongst all of the other alternatives it still remains one of the best investments. Recessions come and go, wives and husbands come and go, and Chancellors come and go, but the Englishman's home still remains a pivotal and key element to Western family life and wealth creation for its members that can effectively be passed on to future generations.My usual advice to clients when they start on the property ladder with their first purchase is to try and buy the most expensive property they can possibly afford with the maximum borrowing possible. The cost of acquisition these days, particularly in London with Stamp Duty Land Tax starting at 1% and 4% for over £500,000, is usually the most expensive part of the acquisition process by a long shot. (It is still one of the lowest rates in Europe and although it may be politically sensitive in the current economic climate, it is highly likely the Chancellor will seek to raise this). This Stamp Duty applies whether it is the principal residence you are purchasing or an investment buy-to-let. The great tax-effectiveness of the principal family home is that it is totally free of tax on re-sale, regardless of how much capital appreciation is made. This is in my view the safest and most cost effective way of acquiring wealth.If you have been fortunate enough to purchase in inner London in the last 20 years you will have seen the value of your property double almost every 10 years, and even in the current recessionary trend you will still have made an excellent investment. One should therefore seek to maximise this opportunity as much as possible by aiming to upgrade into a more expensive family home as often as you can possibly afford.With the current Inheritance Tax, total spousal exemption on the death of the first spouse and the ability of the surviving spouse on his death to utilise both nil rate bands (currently at £325,000), the last spouse’s estate can enjoy a total exemption of £650,000.Acquiring a portfolio of buy-to-lets has in the same breath, also never been as attractive with Capital Gains Tax rates now at an all-time low of 18%. This however is a potential likely target by the Chancellor in his current revenue-raising mood.

Legal Proceedings - Issue 27

Roll out the red carpet! Tier 1 Investor Visas.In the last few years, the UK Government has introduced the Tier 1 (Investor) visa which effectively rolls out the red carpet for foreign investors. This visa offers significant incentives for high net worth individuals looking to settle in the UK.Key principles:The Tier 1 (Investor) category is for high net worth individuals making a substantial financial investment in the UK.Under this route you will not need to show that you have any English language ability.You will not need to show any maintenance (funds) because if you have the required investment funds you will be able to support yourself in the UK without needing help from public funds. You will not be able to claim most state benefits.You will have to register with the police if this is required by paragraph 326 of the Immigration Rules, depending on your nationality.You will not be able to take employment as a Doctor or Dentist in training, except in defined circumstances. You will not be able to take employment as a professional sportsperson (including as a sports coach).Your dependants may be able to join you.You will be able to apply for settlement in the UK through this route.Requirements:In order to obtain this type of visa either:-You have money of your own, under your own control, held in a regulated financial institution and disposable in the UK amounting to no less than £1 million.OrYou have £2 million or more in personal assets and have money under your control, held in a regulated financial institution and disposable in the UK amounting to no less than £1 million, which has been loaned to you by an Authorised Financial Institution.Settlement:Generally for initial applications, you will be granted a length of 3 years. After 3 years, you can extend your UK visa for another 2 years. After 5 years, you may be eligible to apply for permanent residence in the UK. There is also an accelerated "fast track" route to permanent residence of 2 years if you invest £10 million or 3 years if you invest £5 million.Dependants:You are allowed to bring your children under 18 years of age and your husband or wife with you to the UK and they can apply for settlement as your dependants at the same time.Xiaolin Ma, Trainee Solicitor and Immigration SpecialistAgent sues client for commissionCruickshanks recently won a case on behalf of a selling client of a £3.25 million property.Our client was sued for two commissions in the Central London County Court.Agent 1 had shown the property to the ultimate purchaser before the seller had signed their Terms and Conditions. The ultimate purchaser then for reasons of their own decided that they could no longer trust Agent 1 and viewed the property again with Agent 2 a few days later. By this time our client had signed Agent 2's Terms and Conditions.During the course of disclosure and exchange of witness statements it was disclosed that Agent 1 had essentially "amended" their detailed computer generated journal to suggest that they had more timely dealings with the sellers than they actually had.After a 3 day trial at the Central London County Court, and disclosure of the "real" detailed journal, the Judge found Agent 1's evidence dishonest and fraudulent. He placed no reliance on any of the Agent 1's witnesses. Our client was awarded costs on an indemnity basis in excess of £40,000.Why is independence of a law firm important?This issue arises often where lenders advertise free legal fees. We have experienced many instances where existing clients have been told by their lender that they must use a solicitor on their lenders panel otherwise the legal services are not "free."This sounds harmless enough but often what is at stake is independent legal advice to you, the borrower that may or may not be available from a lenders panel solicitor.If a panel solicitor receives referrals from the lender and their fees are paid by the lender then this as a matter of common sense must compromise the independence of the panel solicitor. A solicitor is bound to act independently of the lender when advising you on the mortgage arrangement and whether or not the mortgage is in your best interests.Our experience of such panel firms are that they are often rubber stamping machines where you can seldom speak to a person and "the client" is lucky if they ever meet anyone from that firm! An often simple Conveyancing chain becomes protracted by the delays caused by the rigid time scheduled conveyer belt like processes of such firms especially if a legal issue arises. Often weeks can elapse before the query gets processed up the chain of command in the Conveyancing panel firm. This causes inevitable delay and stress in the Conveyancing process.Next time you see a lender advertising "free legals" ask yourself one question." If the mortgage offer is so good why will they not offer the same free legals for my independent solicitor of choice?"John CruickshankWhen is Redundancy not Redundancy?Redundancy is a potentially fair reason for dismissal and this article seeks to highlight the importance of defining redundancy for both employers and employees.Employers perspective.It is important for employers to recognise what constitutes redundancy in order to know how to proceed in relation to its staff, to appreciate its potential liability for redundancy pay and to minimise the risk of claims from individual employees for unfair dismissal.Broadly speaking, redundancy situations fall into three categories:Business closure - A business closes or relocates, this may be permanent or temporary,Workplace closure - A particular workplace closes or relocates such as one of the business' offices or factories,A reduction in the need for employees to carry out work of a particular kind – For example due to introduction of new technology or economic downturn.The tribunal will not normally look behind the employer's decision or require it to justify how or why a redundancy situation has arisen. However, an employer considering making redundancies in his workforce should ensure that it has acted reasonably in all the circumstances of the case. An employer will normally be required to:Warn and consult employees, or their representative(s), about the proposed redundancy,Adopt a fair basis for selecting employees for redundancy. An employer must identify an appropriate pool from which to select potentially redundant employees and must select against proper criteria,Consider suitable alternative employment. An employer must search for and, if it is available, offer suitable alternative employment within its business.Employees perspectiveIt is important for employees to recognise what amounts to a genuine redundancy situation. Some employers may wish to dismiss their employees for other reasons and attempt to disguise this as redundancies. A dismissal for redundancy will be automatically unfair where the employee is selected on grounds such as whistleblowing, asserting a statutory right or trade union activities.Employees should therefore be aware of their employment rights, both in the event of redundancy and generally in the workplace such as the right not to be discriminated against on the grounds of age, gender and race etc.Tian Yin Wu Trainee Solicitor

Ambassador Xiaoming Liu’s Commemorative Reception 14 August 2015

Dr Xiaojiu Zhu was invited as the only Chinese speaker besides the Ambassador Liu to speak on behalf of the fellow Chinese.I'm most grateful to be invited to this commemorative reception and honored to speak on behalf of my fellow Chinese.Why are we marking the 70th anniversary of the two victories and why now?The WWI started in 1914 and ended four years later. WWII broke out in just over some 20 years and lasted for 6 years, it involved vast majority of the world's nations and was the most widespread war in history resulting in an estimated 50-85 million deaths, half of them are Chinese.The war against Japanese invasion started two years before the WWII and ended on the same day. The Chinese people suffered the longest but played a major role in ending both wars. Japanese people as we know them are polite, gentle and courteous. However, the Japanese army was ferocious. in 1937 at Nanjing they killed and buried alive over 300,000 soldiers and civilians, including 20 thousand rape cases, created the world's most shocking Nanjing Massacre. It is not only the huge number of death, but the way they killed our Chinese people, which are beyond believe.The WWIII has been predicted but 70 years after end of WWII it has still not started. It is unlikely to happen when people who have lived through the catastrophe of it are still alive.However they are passing away. It is therefore important to mark the 70th anniversary of the 2 victories, and it is vitally important for us, our current leaders and our young generations to remember what had happened, and safe guard the world peace.抗战时期的张治中There are many heroes in our war anti-Japanese invasion. My grandfather General 张治中 is one of them. He is widely known as 和平将军, general of peace, but he is considered a military legend. He served as an instructor at Huang Pu Military academy "WHAMPOA" in GuangZhou in 1926 and played a critical role in establishing the WuHan HuangPu military academy.In January 1932, Shanghai was attacked by Japan. At the time there was only 19 路军 孤军奋战19 route army fighting alone as there was no other armies closely or willing to join. General Zhang went to see Jiang,and asked to join the battle in Shanghai. With the national pressure, Jiang agreed and formed a new 6 corps named Zhang the Commanding General. The night before the battle on 15 February, General Zhang wrote his first will "正是国家民族存亡之秋,治中身为军人,理应身赴江场荷戈奋战,保卫我神圣领土,但求马革裹尸,不愿忍辱偷生..." at the pinnacle point of the nation's survival, as a military officer, I must go to the battle ground, I'd rather die on the battle field than live without fighting for my country.On 20th January, the Japanese army started a frontal assault. The 19th and 5th corps were fighting fiercely side by side. On 21th January; General Zhang ordered 88 师division and 528 团 regiment to raid the front line. After 2 days of fighting the Japanese soldiers were tired and did not expect the attack. They suffered heavy casualties. 庙行大捷 The temple battle the Chinese army killed over 3000 Japanese and wiped out its elite troops. Chinese and foreign newspapers reported that the battle was the pinnacle of the war against Japanese aggression.In Feb 1936, Nanjing government divided China into a few defense regions to prepare for the possible Japanese attack. General Zhang was the commander for 京沪Beijing and shanghai area. To prepare for the battle he selected officers from Central Military Academy to meet regularly. He ordered them not to correspond anything being discussed. The elite officers discussed the strategies against the possible Japanese large scale invasion, considered the political, economical and geographical factors. Later the meeting room was moved to 苏州留园and outside hang the door plate "中央军校野营办事处" "office for central military school's camp". General Zhang organized many meetings for this think tank and recalled later that none of the outsiders knew what was going on in this room which had made preparations for anti-Japanese war. The group continued the meetings until the battle of "八一三".In 1937 when General Zhang heard the news of Marco polo bridge incident 卢沟桥事变, he was recuperating in Qingdao. He ignored the doctor's advice and went to Nanjing to see Jiangjieshi. The next day, he was named the Commander in Chief of the 3rd War Asia "京沪警备司令官".On 11 August, Japanese navy moved into Huangpu River, ready to land at many ports along the river. General Zhang quickly moved the army overnight from Suzhou and Wuxi to shanghai. In the morning, the local residents woke up and saw Chinese army everywhere. They asked where they came from and how could they have moved so fast. This is all due to the careful preplanning to control the trains and buses in the areas. General Zhang quickly arranged the armies to occupy the key positions in Shanghai. He then immediately asked Nanjing for the order to attack. He believed a fast and surprised attack would achieve a quicker victory. However, the US and UK governments were against the attack in shanghai. They suggested making shanghai a non-defense city, a free port. Nanjing hesitated and the critical moment was lost as Japan had time to send in the re-enforcement. On 13 August, Japan started bombing and attacking Shanghai, the start of the "八一三". 淞沪战。Later he led the 9th army corps on the battlefield for 40 days, he was loved by his soldiers as he insisted on eating and sleeping with them. He travelled between battle fields and was so exhausted often needed to be carried. Due to the internal politics, he was forced to retire from the Commander position.Later my grandfather said that that "我是个军人 I am a military personnel but I consider myself an educator教官as I have chosen to spend more time teaching than fighting in battlefields". Both my parents were teaching at Tianjin University. They now live in Los Angels, my mother is very active in organising community activities. In 2010 she organized a Chinese float to participate in the popular annual New Year's Day Pasadena Rose Parade in the US. It was the first time that a Chinese float to participate. The proposal was initially opposed by many local Americans as they argue about China's human rights issue. However, when the Chinese float passed the local streets, it was one of the most popular float. the local people loved it and wanted to know more of Chinese culture.To mark the 70th anniversary of the 2 victories, my mother initiated and orchestrated 黄河大合唱 the chorus of the yellow river, the concert brought together over 400 singers from 12 different local chorus including a youth one of 60 children. Both the director and baritone廖昌永were well known and especially invited from China. It performed on 1st august to over 2000 audiences with great success. [Mum first shot] Others followed, the concert of the Chorus of the Yellow River will be staged in Chicago, Australia and even in London organized by the Chinese London Philharmonic Orchestra to be staged on 13 Sep. My mum was pleased when she heard from the organizer that we both will be participating.There are other events to mark the 70th anniversary of the 2 victories, Dr Chan's the Promotion of China Reunification Society in UK will have a reception on 16 Aug and the UK dance and culture association will put up a dance and singing performance on 20 Sep. I have been invited to be an organizer and have arranged for 60 children and adults from our London Mandarin School to attend. As a practicing solicitor I believe the law and order are important in our modern life. However the education is just as or even more important, to keep peace. Participating in this performance will make children more aware of the history, build the team spirit and increase their confidence.We believe that there are 3 'don't forget' 3不忘, 1) we should not forget the history as it reminds us the catastrophes of a war can bring, 2) we should not forget our country we overseas Chinese are working hard to establish ourselves in this country. We shall not forget that we are Chinese, and 3) we must remind our children not to forget the Chinese culture.We overseas Chinese all believe it is significant and timely to mark the 70th anniversary of the 2 victories. 70 years ago Japan lost the war, 70 years later Japan shall not lost its conscience to face the history and also decide on its position regarding the 钓鱼岛。My grandfather's wish is to have a united China. Let's "remember history, commemorate the matures, cherish peace and look to the future." 铭记历史,珍爱和平,纪念胜利,为祖国和平统一而奋斗!