A GOVERNMENT OFFER
The days now passed very quickly. The Tang Clan had fifteen lay witnesses prepared to give evidence. Ben and Wai saw each one of them , and took them through their statements at length. It was important that they gave evidence exactly in accordance with their statements, copies of which had been served upon the Government, pursuant to the judge’s order. The Government’s counsel would be lying in wait ready to trip them up. Ben had to make them prepared for that eventuality.
The four representatives of the Tang Clan, named as Plaintiffs to the action, had a conference with Leading Counsel Richard Yap ten days before trial. As well as being advised upon their chances of success, Mr. Yap had to advise them upon the desirability or otherwise of accepting the Government’s offer to settle the case, which had been received by letter to Roberts McCann only days before. It had come completely out of the blue. Certainly, nothing Mandy had ever said to Ben had indicated an offer may be forthcoming.
Basically, the Government had agreed to acknowledge the Tang Clan’s ownership of the temple, but subject to conditions. The Government wanted an independent committee set up to administer the temple and it’s funds. The committee would consist of Tang Clan members and appointees of the Government. They were insistent however that the Government appointees would have the majority on the committee. In return for this concession, the Government would acknowledge the right of the Tang Clan to withdraw from court the funds being held there for their own use as they saw fit. With interest, those funds now stood at over HS$550 million. The Plaintiff’s’ legal costs would be taken from the fund.
Dylan had nearly fallen down when he read the letter. He had called Ben, who was in court to read out the contents. They both felt it was an offer the Tang Clan could accept. In fact, Ben couldn’t believe it. If the Clan accepted the terms, they were made for life.
They had held a meeting with Jacob and Wai the next day. Jacob was non-committal, saying it was a matter for the Clan. Wai was however dead against it.
“This is their first offer. You know the first rule in litigation, I don’t have to tell you it. Never accept the first offer. I’m sure we can do better. We’ve got them on the run.”
“You must at least speak to the clients, Wai, take instructions” said Ben.
“I have. They will not accept the offer as it stands. This is a Tang Clan temple. They will never accept the Government control over it, as in effect they will have with the proposed format of the committee.”
“But Wai” shouted Dylan, “the Clan will get all the money and be recognised as the legal owner of the temple!”
“It’s not just about money, Dylan.”
Oh yes it is, thought Dylan.
“The villages will not understand it if a settlement was agreed whereby the Tang Clan gave up control of the temple. I cannot recommend that to the client.”
“Well, let’s see what Richard Yap says. And London Counsel, Gordon Stewart. If they say accept, the clients must accept.”
“Clients will certainly take Leading Counsels’ advice into account, of course. But this is how clients see it at the moment.”
Both Ben and Dylan had been furious at what they felt to be Wai’s cavalier attitude towards the offer. They comforted themselves however at the thought that surely Richard Yap would persuade clients otherwise. The four representatives, Ben, Dylan, Jacob and Wai thus crowded into Richard Yap’s chambers on Monday 24th February, seven days before start of trial. They sat around Yap’s very large oak table. Yap sat at the head of the table.
“Now”, said Yap, “I know that the representatives speak little English. I will therefore translate into Cantonese everything I firstly say in English. Please tell clients this, Wai.” Wai duly advised them of Yap’s intentions.
“Right. As you all know, a letter of offer has been received from the Government. I firmly believe that the offer should be accepted, subject to various qualifications to be received from the Government. The main reason is simply this - I cannot guarantee that we shall be successful at trial. We have many hurdles to overcome, the greatest one being to prove actual ownership of the temple in the first place, hundreds of years ago. I know we have various pieces of evidence, such as memorial stones, old books and records, evidence of our lay witnesses and our experts. At the end of the day, however, I am not confident that it is enough to prove to the Court’s satisfaction that we owned the temple.”
Yap took a sip of water.
“That is the first problem. Now, even if we can prove ownership all those years ago, the Government are claiming that we sold our rights to the temple by reason of a transaction in 1924. That document they have produced. We have our own interpretation of that document, but frankly, the Court could decide either way on that point.”
“Finally, the Government are claiming that even if we can prove all the above, the temple is a charitable institution which is held on behalf of the public. Thus, a scheme of trust should be set up with a committee to run the temple for the public. As you know, the temple is open to the public all year round. It is perhaps therefore an irresistible inference to hold that the temple is for the benefit of the public, and not just the Tang Clan. I fear that this is a fearsome hurdle to overcome, and on balance I believe the odds are against us on this point. If the judge finds in the Government’s favour on the charity issue, we lose. The Tang Clan will be ordered to pay the Government’s legal costs of the entire proceedings, which will run into tens of millions of dollars. It would mean the financial ruin of the Clan.”
“It is therefore my view” concluded Yap, “that it is not worth the risk of proceeding to trial when we have the present offer on the table. I believe - as does London Counsel Mr. Stewart, with whom I have discussed the case at length by telephone - that we negotiate to get a better offer. If the offer cannot be bettered, then it be accepted in it’s present form.”
Ben and Dylan were delighted with this strong advice. Wai clearly was not. He had pulled faces throughout Yap’s address. He did however translate everything that had been said to the representatives, although Yap had to step in from time to time to make a point. Wai finally asked if he could spend some time alone with the representatives to take instructions. Ben and Dylan saw no reason why they could not discuss matters in front of Yap, but let it pass, as Yap readily agreed. They returned fifteen minutes later. Wai spoke.
“Mr. Yap, clients fully understand your advice and appreciate very much the time and effort you are spending on their case. They understand the stakes and the risks involved in proceeding to trial. It is their decision however that they cannot accept the offer as presently stands. They cannot accept any fetter upon their discretion on how the temple is to be run. If the Tang Clan had the majority on the proposed committee, things may be different, but as things stand, we wish to proceed to trial.”
Dylan stared at Wai. If looks could kill, Wai would be a dead man. Ben was also upset. The clients were rejecting the advice of Leading Counsel. If they lost at trial, Ben and Dylan would not receive a dollar in costs as the Clan had run out of money. To Ben and Dylan’s mind, Wai was not only wrongfully jeapordizing the future of the Clan, but also the firm.
“So be it. Benjamin, I would therefore write to the Government rejecting their offer, and ask them to come up with a better one. I shall talk to Government Counsel, off the record, to say that clients cannot accept the offer as it stands, but may be amenable to a settlement should the offer be bettered. Am I right there, Wai?”
“Yes, Mr Yap” said Wai.
“In which case, I think we are done here. Thank you gentlemen, I shall see you at court next Monday.”
Everyone gave their thanks to Yap and left his room. Dylan waited until the clients were out of earshot downstairs before starting on Wai.
“Who the hell do you think you are?” shouted Dylan, “it’s not your decision whether to proceed, you know, it must be clients’ decision. You’re railroading them into this!”
“I resent that very much. You must remember, I’m not only a member of Roberts McCann, I am also a member of the Tang Clan. I do not think that the offer is acceptable.”
“Oh yes, you would know” said Dylan sarcastically, “I mean, you’ve been a solicitor for 16 years like Ben and I, you know best, I’m sure.”
“Look, Wai”, said Ben, “what we’re saying is that two of the most experienced Counsel around - plus us, for what that’s worth - believe the present offer should be accepted if all else fails. This is not a game we’re playing here. If we lose, the Clan will be destroyed, they will have to sell all their land to pay Government costs. Be sensible.”
“As I’ve said, clients are well are of the possible consequences. You do not understand. The Clan believe that they have been ripped off due to Government corruption in the past thirty years. They will not simply sit down and let the Government win.”
“It’s not a Government win if the offer is accepted”, screamed Dylan. “It is a virtually 100% Tang Clan victory on the proposed terms!”
“That’s not how the Clan see it, Dylan. Look, I’m sorry, I know you want your costs. The Clan will not accept the present offer. Full stop. See if you can get anything better and we’ll talk again.”
Jacob, who had been silent throughout, shrugged his shoulders. He then left with Wai to get a taxi home. Ben and Dylan were left on the street in Central, and Dylan was seething.
“Little bastard. We should sack him”, he said.
“Oh yes, that’ll really help. It’ll just mean they get another law firm.”
“But he’s wrong, Ben!”
“I know, but what can we do? Let’s get on with it. The UK expert arrives tomorrow, Professor Davids. Want to meet him at the airport with me?”
“As long as it’s not too early.” Professor Davids proved to be another surprise.