|
Chapter: | 159
 | Title: | LEGAL PRACTITIONERS ORDINANCE | Gazette Number: | 25 of 1998 |
| Schedule: | 2 | Heading: | Version Date: | 01/07/1997 |
Adaptation amendments retroactively made - see 25 of 1998 s. 2
[sections 26A, 26B,
26C & 26D]
26C & 26D]
Money
1. (1) The Court of First Instance, on the application of the Council, may order that no payment shall be made without the leave of the court by any person (whether or not named in the order) of any money held by him (in whatever manner and whether it was received before or after the making of the order) on behalf of the solicitor or his firm or the foreign lawyer or his firm.
(2) No order under this section shall take effect in relation to any person to whom it applies unless the Council has served a copy of the order on him (whether or not he is named in it) and, in the case of a bank or other financial institution, has indicated at which of its branches the Council believes that the money to which the order relates is held.
(3) A person shall not be treated as having disobeyed an order under this section by making a payment of money if he satisfies the Court that he exercised due diligence to ascertain whether it was money to which the order related but nevertheless failed to ascertain that the order related to it.
(4) This section does not apply where the powers conferred by this Schedule are exercisable by virtue of section 26C of this Ordinance.
2. (1) Without prejudice to section 1 if the Council passes a resolution to the effect that any sums of money to which this section applies, and the right to recover or receive them, shall vest in the Council, all such sums shall vest accordingly (whether they were received by the person holding them before or after the Council's resolution) and shall be held by the Council on trust to exercise in relation to them the powers conferred by this Schedule and subject thereto upon trust for the persons beneficially entitled to them.
(2) This section applies-
- (a) where the powers conferred by this section are exercisable by virtue of section 26A of this Ordinance, to all sums of money held by or on behalf of the solicitor or his firm or the foreign lawyer or his firm in connection with his practice or with any trust of which he is or formerly was a trustee;
(b) where they are exercisable by virtue of section 26B of this Ordinance, to all sums of money in any client account; and
(c) where they are exercisable by virtue of section 26C of this Ordinance, to all sums of money held by or on behalf of the solicitor or his firm or the foreign lawyer or his firm in connection with the trust or other matter to which the complaint relates.
(4) Within 8 days of the service of a notice under subsection (3), the person on whom it was served, on giving not less than 48 hours' notice in writing to the Council and (if the notice under subsection (3) gives the name of the solicitor instructed by the Council) to that solicitor, may apply to the Court of First Instance for an order directing the Council to withdraw the notice.
(5) If the Court makes such an order, it shall have power also to make such other order with respect to the matter as it may think fit.
(6) If any person on whom a notice has been served under subsection (3) pays out sums of money at a time when such payment is prohibited by the notice-
- (a) he shall be guilty of an offence and liable on summary conviction to a fine of $50000; and
(b) the Court of First Instance may, on the application of the Council, order that person to comply with the requirements of the notice within such time as may be specified in the order.
3. Without prejudice to sections 1 and 2, if the Court of First Instance is satisfied, on an application by the Council, that there is reason to suspect that any person holds money on behalf of the solicitor or his firm or the foreign lawyer or his firm, the Court may require that person to give the Council information as to any such money and the accounts in which it is held.
4. On the death of a solicitor or foreign lawyer who immediately before his death was practising as a solicitor in his own name or as a sole solicitor or foreign lawyer under a firm name, the right to operate on or otherwise deal with any banking account in the name of the solicitor or his firm or the foreign lawyer or his firm, being an account in the title of which the word "client" appears, shall, notwithstanding anything in this Ordinance or otherwise to the contrary, vest in the Council to the exclusion of any personal representatives of such solicitor or foreign lawyer and shall be exercisable as from the death of the solicitor or foreign lawyer.
5. Subject to the service of any notice under section 2(3), and to any application that may be made under section 2(4), the Council or any person in that behalf appointed by the Council may withdraw the moneys, or from time to time any part of the moneys, in any banking account in the name of the solicitor or his firm or the foreign lawyer or his firm, and any moneys in the office of the solicitor or his firm or the foreign lawyer or his firm due to or held on behalf of his clients, and pay them into a special account or special accounts in the name of the Council or such person appointed as aforesaid and may operate on, and otherwise deal with, such special account or accounts as the solicitor or his firm or the foreign lawyer or his firm might have operated on, or otherwise dealt with, that banking account:
Provided that a banker with whom such special account or accounts is or are kept shall be under no obligation to ascertain whether that account or those accounts is or are being so operated on or otherwise dealt with.
6. In any case where the Council is unable to ascertain the person to whom any moneys referred to in a notice served under section 2(3) belong or where the Council otherwise thinks it expedient so to do, the Council may apply to the Court of First Instance for directions as to the transfer of such moneys.
Documents
7. (1) The Council may give notice to the solicitor or his firm or the foreign lawyer or his firm requiring the production or delivery to any person appointed by the Council at a time and place to be fixed by the Council-
- (a) where the powers conferred by this Schedule are exercisable by virtue of section 26A of this Ordinance, of all documents in the possession of the solicitor or his firm or the foreign lawyer or his firm in connection with his practice or with any controlled trust; and
(b) where they are exercisable by virtue of section 26C of this Ordinance, of all documents in the possession of the solicitor or his firm or the foreign lawyer or his firm in connection with the trust or other matters to which the complaint relates (whether or not they relate also to other matters).
(3) Except in a case where an application has been made to the Court of First Instance under subsection (4), if any person having possession of any such documents refuses, neglects or otherwise fails to comply with a requirement under subsection (1), he shall be guilty of an offence and liable on summary conviction to a fine of $50000.
(4) The Court of First Instance, on the application of the Council, may order a person required to produce or deliver documents under subsection (1) to produce or deliver them to any person appointed by the Council at such time and place as may be specified in the order, and authorize him to take possession of them on behalf of the Council.
(5) If on an application by the Council the Court of First Instance is satisfied that there is reason to suspect that documents in relation to which the powers conferred by subsection (1) are exercisable have come into the possession of some person other than the solicitor or his firm or the foreign lawyer or his firm, the Court may order that person to produce or deliver the documents to any person appointed by the Council at such time and place as may be specified in the order and authorize him to take possession of them on behalf of the Council.
(6) On making an order under this section, or at any later time, the Court, on the application of the Council, may authorize a person appointed by the Council to enter any premises (using such force as is reasonably necessary) to search for and take possession of any documents to which the order relates.
(7) Upon taking possession of any such documents, the Council shall serve upon the solicitor or foreign lawyer and every person from whom those documents were received, or from whose premises they were taken by virtue of an order made under this section, a notice giving particulars and the date of taking possession thereof.
(8) Subject to subsection (9) a person upon whom a notice under subsection (7) is served, on giving not less than 48 hours' notice to the Council and (if the notice under subsection (7) gives the name of the solicitor instructed by the Council) to that solicitor, may apply to the Court of First Instance for an order directing the Council to deliver the documents to such person as the applicant may require.
(9) A notice under subsection (8) shall be given within 8 days of the service of the Council's notice under subsection (7).
(10) If no application is made under subsection (8), or if the judge to whom any such application is made directs that the documents shall remain in the custody or control of the Council, the Council may make inquiries to ascertain the person to whom those documents belong and may deal with those documents in accordance with the directions of that person:
Provided that, before dealing with such documents, the Council may take copies of, or extracts from, any such documents.
(11) Without prejudice to the provisions of Part IIA of this Ordinance and this Schedule, the Council may apply to the Court of First Instance for an order as to the disposal or destruction of any documents in its possession by virtue of this section or section 8.
(12) On an application under subsection (8) or (11), the Court may make such order as it thinks fit.
(13) Except so far as its right to do so may be restricted by an order on an application under subsection (8) or (11), the Council may take copies of or extracts from any documents in its possession by virtue of this section or section 8 and require any person to whom it is proposed that such documents shall be delivered, as a condition precedent to delivery, to give a reasonable undertaking to supply copies or extracts to the Council.
Mail
8. (1) The Court of First Instance, on the application of the Council, may from time to time order that for such time not exceeding 18 months as the Court thinks fit postal packets (as defined in section 2 of the Post Office Ordinance (Cap 98)) addressed to the solicitor or his firm or the foreign lawyer or his firm at any place or places mentioned in the order shall be directed to the Council or any person appointed by the Council at any other address therein mentioned; and the Council, or that person on its behalf, may take possession of any such packets received at that address.
(2) Where such an order is made the Council shall pay to the Postmaster General the like charges (if any), as would have been payable for the redirection of the packets by virtue of any scheme made under regulation 32 of the Post Office Regulations (Cap 98 sub. leg. A), if the addressee had permanently ceased to occupy the premises to which they were addressed and had applied to the Postmaster General to redirect them to him at the address mentioned in the order.
(3) This section does not apply where the powers conferred by this Schedule are exercisable by virtue of section 26C of this Ordinance.
General
9. The powers in relation to sums of money and documents conferred by this Schedule shall be exercisable notwithstanding any lien on them or right to their possession.
10. Subject to any order for the payment of costs that may be made on an application to the Court under this Schedule, any costs incurred by the Council for the purposes of this Schedule, including, without prejudice to the generality of this section, the costs of any person exercising powers under this Schedule on behalf of the Council, shall be paid by the solicitor or foreign lawyer or his personal representatives and shall be recoverable from him or them as a debt owing to the Council.
11. Where an offence under this Schedule committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
12. Any application to the Court of First Instance under this Schedule may be disposed of in chambers.
13. The Council may do all things which are reasonably necessary for the purpose of facilitating the exercise of its powers under this Schedule.
[cf. 1974 c. 47 Sch. 1 Pt. II U.K.]
14. Any requirement of notice under this Schedule shall be made in writing under the hand of such person as may be appointed by the Council for the purpose and may be served on any person either by personal service or by being sent by registered post addressed to his last known place of business or residence.
(Replaced 68 of 1995 s. 13. Amended 25 of 1998 s. 2)