Andrew Powner

Haldanes Solicitors & Notaries

Hong Kong www.haldanes.com

powner@haldanes.com Tel: +852 2868 1234

Biography

Andrew specialises in whitecollar crime, and is experienced in dealing with the police, the Independent Commission against Corruption (ICAC), Commercial Crime Bureau (CCB), Customs & Excise Dept, Securities and Futures Commission (SFC) and regulatory bodies. More recently he has been giving seminars on the National Security Law. He is the managing partner of Haldanes, an award-winning legal practice with the largest team of dedicated Criminal Defence Lawyers in Hong Kong.

How has the market changed since you first started practising?

As in most practices, the market has changed tremendously in the past 28 years. In criminal law, there have been major developments in money laundering, SFC regulation, the National Security Law, cybercrime and doxxing, to name just a few. Many of the changes are a matter of the law catching up with technology. As a member of the Law Reform Commission dealing with sexual offences, we have also issued a public submission and appeared before the Legislative Council (the governing body of Hong Kong) regarding proposed changes, which if accepted by the government will radically change the relevant legislation in the future. These include new offences such as up-skirt photography, voyeurism, and tackling the growing number of child -related internet offences and sexual grooming of children over the internet.

What has been your most interesting case to date?

Over the years there have been many, although in the criminal litigation field we have to respect client’s privacy as well as legal privilege; not only before and during a case, but also afterwards, as many clients do not wish to be named in articles or otherwise reminded of their criminal trial. Nevertheless, and since it was widely reported in the public domain, certainly one of the most interesting was the case of Fetish Fashion, in which a local BDSM private gathering was raided by the police who suspected that illegal offences were occurring at the party, and even went so far as to engage undercover officers to attend the event. The clients were all acquitted with costs, as all of the participants had been acting perfectly legally.

What are the challenges from a reputational viewpoint when representing prominent individuals in high-profile criminal proceedings?

This often presents a challenge when trying to deal with press enquiries about highprofile cases. On the one hand, we wish to convey the point that our client will be contesting the charges vigorously; while at the same time not revealing the defence case before trial. High-profile clients sometimes wish to disclose far more of the defence case in advance of trial in order to protect their reputation, but we advise against this approach so as not to encourage a trial by press. From Haldanes’ reputational viewpoint, it is essential to undertake detailed preparation for each trial, with particular care taken with examination of unused materials as well as in obtaining the proof of evidence and defence witness statements. With such detailed preparation, even if the initial trial may result in a conviction, there are potential grounds for an appeal based upon the legal arguments and admissibility of evidence points raised during the trial.

What are the main challenges for enforcement agencies in your jurisdiction and why?

Hong Kong laws provide a range of options for enforcement agencies, but like elsewhere in the world, the main challenge is cybercrime. The speed and audacity of the cyber criminals often leaves the enforcement agencies lagging behind in terms of international law enforcement options. For good reason, the Mutual Legal Assistance Treaties between countries allow for a number of checks and balances, but those same legalities are exploited by the cyber criminals to dissipate the proceeds of crime before criminal proceedings and asset tracing can begin on an international scale.

What developments in Hong Kong should foreign practitioners be following and why?

The National Security Law (NSL) is the dominant topic of conversation in Hong Kong at present. Although it does not specifically target businesses, those in the media and entertainment groups have understandably expressed concern. The government has insisted that the NSL is a targeted piece of legislation for those who pose a threat to national security. Most individuals and businesses are adopting a “wait and see” approach in view of recent developments. In particular, we await the first judgments specifying the scope of the NSL offences.

How have the challenges brought on by covid-19 impacted your practice?

Like many businesses around the world, we initially adopted a work from home approach; followed by splitting teams to work alternate weeks; and now we are taking extra precautions in the office and encouraging staff to be vaccinated. We have also upgraded our IT capabilities to ensure greater IT security when working from home. The initial challenges included the inevitable reduction in work due to lack of international business, although we now look forward to a gradual recovery. One of the aspects that will no doubt continue is a client preference for videoconferencing.

What does your role as managing partner at Haldanes entail?

Haldanes divide management responsibility among all of the equity partners, including management of our civil, criminal, matrimonial and corporate departments by the heads of each group. Although I coordinate the overall management of the firm and partners meetings, individual partners take responsibility for matters such as accounts, trainee and intern recruitment, marketing, etc. We also have highly capable administrative staff in charge of the office management, accounts dept and marketing, who report to their supervising partners.

What can younger practitioners be doing to make a name for themselves in the business crime defence market?

Haldanes sponsors mooting competitions and actively encourages those interested in criminal litigation to apply to our firm as interns while still at university. For those who are already qualified, regular court appearance as a young advocate is always the best training ground to learn the ropes for the more complex interlocutory applications which arise during the course of a criminal trial. Working closely with counsel, particularly senior counsel, will often lead to involvement in the more high-profile business crime defence cases where reputations can be earned.