The Barrister Series S5E2 | Employment Law with Frances Lok

---

TRANSCRIPT

Tune in for Series 5 of the HIP talks, a podcast series of discussions on legal issues hosted by Hugill & Ip Solicitors, an independent boutique law firm in Hong Kong providing bespoke legal services and exceptional client service to individuals, families, entrepreneurs and businesses, both locally and internationally. The forthcoming podcasts are The Barrister Series. Over six episodes, the team sits down with preeminent Hong Kong barristers to discuss contentious issues related to civil litigation, employment, family, trusts and estates as well as increasing awareness about the importance of the role of barristers in court proceedings and the relationship between solicitors and barristers when acting for clients.

Hugill & Ip provide expert advice across a variety of dedicated practice areas both contentious and non contentious and outstanding team of solicitors who have achieved exceptional results and recognition in the areas of dispute resolution, probate & trusts, family & matrimonial, corporate & commercial and employment & immigration. Hugill & Ip applies modern thinking to legal services, uses technology in a contemporary office environment and is fully committed to giving back to the community.

Adam Hugill  01:15
Good morning. I’m Adam Hugill from Hugill & Ip Solicitors. I’m here today with Frances Lok from Des Voeux Chambers. Hi, Francis. Hello, Adam. Hi, thanks for joining us today to be part of our Solicitor-Barrister podcast series. Thanks for inviting me.

Adam Hugill  01:31
We’ve known and worked together for about 15 years. And I think we’ve had a number of interesting cases that we can talk about later today.

Frances Lok  01:37
Yes, we have… you’re one of my earliest instructing solicitors in fact, fantastic.

Adam Hugill  01:44
Let’s find back to the beginning. Before you were even a barrister. I understand that you studied at Chinese University, classical Chinese. That’s right. And did that inspire you to have a life in the law?

Frances Lok  01:59
That did not, but I was very active in debate. That’s what gradually led me to the law.

Adam Hugill  02:06
Okay. And after that you did a masters at Oxford. And then because one masters didn’t enough another masters at Harvard.

Frances Lok  02:12
No, actually, I did my degree in Oxford, the master at Harvard. Excellent.

Adam Hugill  02:18
And how did you find living and studying in the UK and then in the States at such a young age.

Frances Lok  02:25
It was very challenging at first, because that was a very big change from studying Chinese, obviously. But that was also very satisfying. I immensely enjoyed the tutorial systems, as in you cannot really escape from doing a thorough research before taking any classes, because it’s usually one on one. And you have to very know your subject before walking in. Very intense, yes, very intense. And the MBA finals was quite a live experience, because you know that they have to take the entire exam of all subjects in the end of your degree, usually within a week or two. So that was really intense as well. Yeah, I went to a much easier University…that was over the second or third year. But that was very good training. Really. The other thing is that they take the exam of every semester after the long break. So you have to train yourself to be very disciplined to do your revision at the same time, but enjoy your holiday. Okay, yeah, very good training for the bar, we have to be very self-motivated and disciplined. Exactly. But not to lose sight of what you need to do in your life in general, apart from work, obviously. That is very good live training for me. Fantastic. So, work life balance, even whilst at Oxford and Harvard.

Adam Hugill  03:50
So this didn’t put you off because you qualified both Hong Kong and at the New York bar. Right.

Adam Hugill  03:57
What inspired you to choose Hong Kong over the New York bar? Or was it was to your bar just sort of qualification that you acquired for good measure?

Frances Lok  04:07
Well, I do feel very committed to Hong Kong, because this is the place that I grow up in. And I feel indebted to a lot of people who helped me on the way. I got the scholarships to go to studies overseas. And as part of the commitment, I come back and develop my career back in Hong Kong.

Adam Hugill  04:24
Excellent. And you started as a pupil at Des Voeux Chambers.

Frances Lok  04:27
Yes. I’ve been at DVC ever since ever since is a very long time. I know it’s on your website, but how many years is that? I think about 17 years, almost 17 years. Fantastic. And in fact, I feel very indebted to some of my mentors in DVC, because they were the one who reached out to me when I was studying in England, and said, Why don’t you come here and have a look at our chambers. Why don’t you become my summer pupil so I started my internship at DVC in my second year.

Adam Hugill  05:02
And you have to go through four pupils four pupilage or four people masters. Is that right?

Frances Lok  05:06
Four people masters in my days it was still four different seats. So I finished three seats in DVC and one other seat in another set of chambers for criminal practice.

Adam Hugill  05:18
Okay. I remember, back when I was at that similar sort of stage working out what path I wanted to be a lawyer but to work out which path to take. And the idea of joining the bar filled me with absolute terror, because I would be a young 20-year-old in that those days in London, trying to make my own way as a self-employed person. I just had no confidence that that’s something I could do. How did you have the confidence that it was all going to be good because I think the Hong Kong system is that you’re essentially unpaid from day one, and you just have to make it on your own.

Frances Lok  05:52
It was a big decision to make at the time, as you put it, because of the financial burden that you have to face. You do have to fund yourself through PCLL, as well as the pupilage. But I was very lucky because I got a scholarship to take me through those hard years. And that’s why it afforded me the choice of doing what I like. And to tell you the truth, the adrenaline rush of going through the court really motivated me in a way… I found that kind of work, we need more interesting then the other side of the work

Adam Hugill  06:34
To being a commercial solicitor that in a big shiny tower just doesn’t have the same adrenaline rush.

Frances Lok  06:41
Well, let me tell you the truth. I did some internship in some services firm, but they put me to do some due diligence on some conveyancing work, maybe that was I very young felt that I was far more attracted to the company’s code, and then court hearings, et cetera.

Adam Hugill  07:00
Fantastic. And so, you’ve just said that your practice is company and commercial law. Was that always your focus? Did the criminal bar ever hold any attraction to you or the family bar? Was it always business?

Frances Lok  07:13
It has always been business.

Adam Hugill  07:15
Well, it’s been great to have the opportunity to work with you. As an employment lawyer, I sometimes consider myself to be on the business side of things. And nearly all of the cases we’ve worked on have had a family angle to them. Perhaps apart from the very first one. I don’t know if you remember back probably to 2010. But the very first case we did was an Anton Piller Yes, it was very exciting. Do you want to tell the world what Anton Piller means?

Frances Lok  07:40
Anton Piller is a form of mandatory order made by the court for the delivery of documents. Generally, this kind of order is made at a time when there is a risk that relevant information in relation to a court case will be destroyed. That was actually our first case, wasn’t it? I think so.

Adam Hugill  08:03
The thing about Anton Pillars, it’s probably the most exciting thing you can do as a solicitor, because you get to get out of the office. Essentially, it’s a civil form of search and seize. Yes, it has been described as the nuclear weapon of the law. Nuclear weapons indeed. And so once the order is made, when you flip to the solicitor side, we’ve got all of the work to do. I know you do all of the legwork to get us there, and it’s intense. But once we’ve got the order, then we have the opportunity of in the case we did it was an office, I think, in Jordan where we get to not exactly bashed down the door. But you know, get our foot in the door, take control of the office, take all of the papers. It’s very exciting. I did one in the UK that was much more emotional, where we had to raid somebody’s house. And so we had to go through the kids bedrooms and things like that, that was quite emotional as a junior solicitor to do this.

Frances Lok  08:56
I think this sort of order demonstrates how important it is for our side of barristers side to work closely with the solicitors because it is very important to get an order that is not only enforceable, but also workable. So we have to actually walk through each and every details in seeking as well as drafting up the order before we actually go into the courtroom and get it otherwise we will get an order that is not quite useful for you guys, when you have to, you know take the piece of paper and go and do the work you have all sorts of practical difficulties.

Adam Hugill  09:34
Exactly. The other side solicitor arrives very quickly, scours the order and finds the loopholes. When we apply for injunctions usually we have very little time as solicitors. But as a barrister, you have even less time because sometimes we’d see these things coming from a few weeks away, sometimes a few months away. But when we call you it’s usually when we need you to jump on it with less than one week, sometimes two or three days.

Adam Hugill  10:02
Yes, on my record you are the one who invariably calls me before the day of Christmas. Yes, I think three years in a row I will always expecting before Christmas. When will Adam call me? And then?

Frances Lok  10:14
Is he here to wish me Merry Christmas? Hey, Francis, we need an injunction. It needs to be in court on the 27th. Yes, yeah. It’s good fun. But I think for all of the cases that we’ve done our emergency Christmas applications, we’ve had pretty good outcomes. Yes, we get pretty good outcomes. I think the most recent injunction we worked on was a case, BFAM v Mills (BFAM Partners (Hong Kong) Ltd v Gareth John Mills & Segantii Capital Management Limited [2021] HKCFI 2904), an employment case, an employment case. And that was due to enforce post termination restrictions, which there’s a lot of debate as to the enforceability of post termination restrictions. And very much when you’re advising a client, you can’t give them black or white advice, because so much of it falls within the discretion of the judge.

Frances Lok  11:00
That too and also, because in this sort of situations, the law is quite fact specific, you know what I mean? So even if you have the same set of terms, depending on the different context of the case, you may get a different outcome.

Adam Hugill  11:20
Yes. And in that case, it was an IT guy at a hedge fund. And the technology that was involved, we had to learn from scratch, we had no idea what all of these terminologies and technologies and everything else that the finance sector was using. Yes, surely it was very challenging, very challenging to and also, from your perspective, you need to educate the judge in a two-hour hearing as to what all of this technology means, why it’s so sensitive, and why it needs to be protected.

Frances Lok  11:53
I think I would put it in this way that it is a very, very deep learning curve, both for me and for a lot of different people as well, I’m sure because of all these complicated technologies, you have to explain them in a way that everybody can understand. And you have to fit them in the legal analysis. That is part of the challenge for a barrister.

Adam Hugill  12:19
And that is your skill. I don’t think I’d ever be that eloquent, to be able to distill something so complicated, put it into a context that could easily be understood to the judge, and do all of that within a few pages of submissions and one hour standing on your feet.

Frances Lok  12:36
I think I do think honestly, you have a great skill set in dealing with the clients… getting instructions, is that true, which I can never do it in such an effective way.

Adam Hugill  12:48
Well, you’re the one that tends to send me the message at about 11 o’clock at night to say we need these loopholes to be filled. And I get to stay until two or three in the morning. And so you can read it over your seven o’clock cup of coffee.

Frances Lok  13:00
That’s my revenge to you for calling me before Christmas.

Adam Hugill  13:05
There are a few of the cases that we worked on together. And we’ve got a few more in the pipeline, which obviously due to client confidentiality, we can’t discuss. What cases have you worked on that have been either particularly instructive or particularly exciting that maybe I wasn’t involved with?

Frances Lok  13:22
Well, recently, I have been quite busy with several arbitrations. But I can’t really share with you the details. But all I can say is that there are a lot of disputes involving Chinese clients or Chinese contracts. And there is an overwhelmingly larger sector of cases where trials are conducted in Chinese, I’m talking about Cantonese or even Mandarin. So, these are quite exciting new development on my part.

Adam Hugill  13:54
And you’re seeing the preference for those sorts of contracts is for them all to be pushed through arbitration?

Frances Lok  13:58
Yes. And a lot of them actually choose Hong Kong as the seat and choose Hong Kong as the governing law. Okay, do. Can you expand on why that may be? I really don’t know… all the better for us.

Adam Hugill  14:16
Do you think that arbitration is preferred because of the confidentiality or confidential nature of arbitration? Or is it the way that enforcement works in China is much more straightforward than forcing high court judgment?

Frances Lok  14:28
I would say the confidentiality, especially if you involve sensitive information about certain commercial contracts and they value that vary greatly.

Adam Hugill  14:39
Yep, I do find it very interesting. Just to go back to the BFAM case, the client is telling you all of this sensitive information about their IT systems. And obviously part of the injunction is that they don’t want this to be used by other people for their benefit. And so, they’re really hesitant to tell you all of their secret source and we’re drilling them down to say: you must tell us about the secret source. And the judge can ultimately write us into their judgment, which is a public document. And so I always find that balancing act between trying to get detailed instructions from a client, where they really don’t want to tell you the secrets because the judge could write it up to be quite tricky. I’m guessing that’s the benefit of arbitration; everyone can be just much more open with each other.

Frances Lok  15:25
That’s quite right. But when we deal with court litigation, of course, it is also down to us to make a differentiation of what sorts of information to disclose. And sometimes you have to put in extra protection to that information, even though you’re making submissions to the judge, for example, or disclosing certain facts in affidavits doesn’t mean that they have to go into the public domain.

Adam Hugill  15:51
I see that you’re extending your practice into contentious probate. I’m the employment lawyer at Hugill & Ip, and Alfred Ip, yours and my good friend, is our head of contentious probate. What attracted you to the sort of probate side of things?

Frances Lok  16:06
In fact, probate has been one of my earliest fields, you can put it that way, I was in the Nina Wang case, when just started to practice. One aspect that attracts me about probate is not only that the legal analysis is often very intricate, but also the human nature reflected across the border of these cases, in order to conduct these sort of cases well, you have to have good grabs on the human nature, and to present the factual narrative of your case well, if I’m making sense…

Adam Hugill  16:42
Absolutely, it’s, it’s the thing I enjoy about employment, because typically, there’s a company on one side and an employee on the other end. So, there’s, there’s a lot of human interest to the story, a lot of emotion, whichever side you’re dealing with, and also the irrationality of people, which makes it quite exciting. Sometimes it makes it very frustrating, but it makes it quite exciting. It keeps each day different.

Frances Lok  17:04
It makes it different from pure commercial cases, for example, you have to construe a contract in a very cold way, then sometimes if you do probate is the exact opposite approach, where you always start with the factual narrative. That’s really something that attracts me very much.

Adam Hugill  17:26
And are there any interesting probate cases you can share with us?

Frances Lok  17:29
I have recently done a case where I have to prove an informal will, informal will. informal will, well that means that’s a will that was not properly executed, no proper witnesses, and there was no proper execution. So you have to prove beyond reasonable doubt that the piece of document represents the diseased testamentary intention.

Adam Hugill  17:53
And you do that by gathering historical evidence belonging to the deceased, getting testimonials from family and friends and essentially building a case that way?

Frances Lok  18:03
That’s right, that was very challenging, because you have to go through the minute details of his life and go through his documents and prove that that was what he wanted. And you have to prove it beyond reasonable doubt.

Adam Hugill  18:16
I’m guessing there’s somebody on the other side who has a vested interest in this estate who is challenging you on this? Yes. Okay. Obviously, we can’t talk anymore. Okay. Moving onto I suppose what some people might perceive as a natural development in your career. You’re sitting again, as a master in the High Court this time previously, you sat as a Deputy District Court Judge… earlier this year, and a couple of years ago, sat twice, yeah. What insights do you get from being on the other side of the bench?

Frances Lok  18:51
It was largely because having been in this profession for more than 10 years, I do really want to give back to the community by doing whatever public service that I can. And to sit as a deputy judge and do justice to the best of my ability is one way of doing it.

Adam Hugill  19:10
And I imagine it’s a very different mindset you need to approach it with his because as a barrister, your single hat, your single focus is just fighting that case for your client as strenuously as you can, when you’re sat on the bench, you’ve got two barristers in front of you both fighting from their perspective. How do you change your mindset to sort of start balancing the arguments between and arriving at a just outcome rather than sort of doggedly fighting your one case like you would as a barrister?

Frances Lok  19:42
You have to empty your mind and bear in mind how important it is to be fair, I think I can put it that way. You really have to be very fair, and you have to listen to everybody before making your decision. You have to be very hardworking and read the papers. It is I have to say it is far more time-consuming than one would think it takes to be to be judging a case.

Adam Hugill  20:08
I imagine and the support that you get, you get the papers presented to you that you get to read through. You sit in court, but then it’s you that has to write up all of your judgments at the end of the day. Yes, that’s a lot of pressure. And again, requires a lot of discipline to get these judgments out quickly.

Frances Lok  20:24
Yes, and invariably, you have to do it quickly. Because with time passes, it becomes more difficult. So, after you hear a trial, for example, when the memory is fresh in your mind, and you remember everything and then you start writing, that is what I find helpful.

Adam Hugill  20:39
Good. And looking forward. What’s the future for Frances Lok? More of the same? Or do you see your career developing into a certain area? Or is there a pull coming from certain legal areas that you’re very attracted to?

Frances Lok  20:56
I do enjoy what I’m doing. But if you ask me in terms of the development in general, I do see a great pool coming from the Chinese sector. I do see a great pool, see the GBA area, Chinese trials, etc. There will be great potential development in the coming years.

Fantastic. Thank you very much, Frances. Thank you.

21:20
Tune in and listen to more episodes of The HIP Talks podcast by checking the Insights section at our website at www.hugillandip.com and our channels on Apple Podcasts, Spotify, Google Podcast. They’re also available on Hugill & Ip’s YouTube channel. You can send comments and feedback to our email address hello@hugillandip.com. Please share The HIP Talks with your friends, family and business associates. 

This podcast is for informational purposes only. Its contents do not constitute legal or professional advice.