Our Managing Partner Roy Leung and Partner Mathew Liu gave a CPD talk on “ListCo Dispute: Parties, Perspectives, and Playbook”, at Denis Chang’s Chambers with Counsel Anson Wong Yu Yat as co-speaker.
Navigating listed company (ListCo) disputes demands balancing corporate control with strict regulatory compliance. The real-world power struggles between shareholders, boards, lenders, and liquidators may require key tactical maneuvers like EGM requisitions, injunctions, provisional liquidations, etc. while high-stakes regulatory hurdles, including trade suspensions and Stock Exchange requisitions, shall be handled with additional care.
As proposed in the Talk, listed companies may consider developing an in-house playbook, reflecting the elements of 4"C"s: Control, Compliance, Cost-Efficiency & Cross-Border, in preparation of the pre-action, active-combat and post-resolution stages when disputes arise.
SFKS is experienced in advising listed companies, their shareholders, directors and independent committees, as well as insolvency practitioners, in the context of listed company disputes. Our Dispute Resolution Department and our Corporate & Commercial Department collaborate in providing instructive, strategic and timely legal support to stakeholders in the midst of heated conflict within and beyond listed companies.
SFKS has been awarded GBA Law Firm of the Year (Hong Kong) again in the ALB Hong Kong Law Awards 2026 by Asian Legal Business and Thomson Reuters.
As a cross-border law firm extending our welcoming arms to clients and practitioners across the GBA, SFKS is exceptionally proud and gracious for being awarded twice in a row since 2025.
Meanwhile, SFKS has been top finalists in all nominated categories in this year’s awards:
- GBA Law Firm of the Year (Hong Kong) - One of the Top 6 Finalists, and Winner
- Real Estate Law Firm of the Year - One of the Top 5 Finalists
- Private Wealth Law Firm of the Year - One of the Top 8 Finalists
- Labour and Employment Law Firm of the Year - One of the Top 5 Finalists
- Transportation and Logistics Law Firm of the Year - One of the Top 6 Finalists
- Corporate Citizenship Law Firm of the Year - One of the Top 5 Finalists
- Dispute Resolution Lawyer of the Year (Roy Leung, Managing Partner) - One of the Top 8 Finalists
These recognitions would not be possible without the professional contributions of members of our team. It remains for SFKS to thank our colleagues, as well as Asian Legal Business, panel judges and practitioners. Congratulations to the 25th anniversary of ALB Hong Kong Law Awards.
Sit, Fung, Kwong & Shum Solicitors (SFKS) extends its welcome and support to the passage of the amendments to the Lawyers Law of the People’s Republic of China passed by the Standing Committee of the National People’s Congress (NPCSC) on 28 August 2026. The amendments provide clear provisions for the Greater Bay Area (GBA) lawyer system through national-level legal provisions, establishing a legal basis for the regularization of the practice system.
GBA Lawyer System Moves Towards Regularization
The GBA practice examination has been successfully held for five sessions, and over 650 Hong Kong and Macau legal practitioners have passed the examination and obtained the GBA Lawyer’s License, enabling them to handle certain civil and commercial legal matters that apply Mainland law in the nine Mainland cities of the Guangdong-Hong Kong-Macao Greater Bay Area. The existing pilot program is set to expire on 4 October 2026. The Department of Justice of the Hong Kong Special Administrative Region Government has been working with the Ministry of Justice, the Department of Justice of Guangdong Province, and other authorities to advance the pilot program and strive for the regularization of the GBA lawyer system.
The Deputy Secretary for Justice, Mr. Horace Cheung, expressed his gratitude to the Standing Committee of the National People’s Congress for its decision, noting that the amendment provides clear provisions for the GBA lawyer system through national-level legal provisions, thereby establishing a legal basis for the regularization of the practice system.
Actively Participating in GBA Legal Development
SFKS welcomes and supports the passage of the amendment to the Law of the People’s Republic of China on Lawyers by the Standing Committee of the National People’s Congress, which regularizes the GBA lawyer practice system.
In fact, SFKS has been actively engaged in the development of legal services in the GBA.
GBA Lawyer Team: The firm has a total of 7 solicitors who have passed the GBA practice examination and obtained dual practice qualifications during their time in SFKS. Among them, Founding Partner Mr. Peter Sit became the first GBA lawyer registered in Jiangmen City. SFKS’s current Managing Partner, Mr. Roy Leung, together with Senior Partners Mr. Simon Siu and Mr. Joseph Wong, and Partner Ms. Jenny Wong are all GBA lawyers.
Industry Recognition: Since the Asian Legal Business (ALB) established the “GBA Law Firm of the Year (Hong Kong)” award, SFKS has been a finalist for three consecutive years, and secured the Winnerfor this award in 2025.
Deepening GBA Exchanges: In recent years, the firm has actively visited various GBA cities for professional exchanges, participated in the first Shenzhen Legal Services Expo, visited several lawyer associations in the GBA for legal exchanges, etc., establishing close cooperative relationships with the legal community in the GBA.
Rooted in Hong Kong · Serving the GBA
Since its establishment in 1981, SFKS has consistently upheld its commitment to “Serving Clients Respectfully, Applying Law Professionally, Rendering Work Effectively.” Leveraging its deep roots in Hong Kong’s common law system and its forward-looking presence in the GBA, the firm will continue to harness the unique advantages of “one country, two systems, three legal jurisdictions” to assist clients in seizing development opportunities in the GBA, facilitate the alignment of rules and mechanisms across the region, and actively integrate into and serve the nation’s overall development strategy.
The regularization of the GBA lawyer system represents a significant milestone in the nation’s rule of law development, offering Hong Kong’s legal profession a long-term and stable path for growth. The firm will continue to leverage its extensive experience in cross-border legal services to contribute to the advancement of the rule of law in the GBA.
A. Introduction: Germanic Origins, Purpose, and Impact
For modern legal practitioners in Hong Kong, the notion of resolving a dispute by exposing an accused person to red-hot iron or freezing water appears not merely archaic but antithetical to justice. Hong Kong’s legal system rests on principles of procedural fairness: Defendants are informed of the case against them, are given the opportunity to respond, are entitled to legal representation, and may challenge the evidence presented by the prosecution. Yet, for several centuries, this very practice, known as trial by ordeal, formed a central part of the early English legal system, the tradition from which Hong Kong's own common law framework ultimately derives. To understand the roots of our own common law inheritance, it is worth examining why a system once placed its faith in fire and water rather than in witnesses and juries.
Trial by ordeal did not originate with the English courts. The ordeal was fundamentally an appeal to supernatural intervention. The earliest form mentioned in the written records before 800 AD is the ordeal of the hot water cauldron, vividly described in Gregory of Tours’ De gloria martyrum. The academic consensus strongly suggests a Frankish origin, as the ordeal appears in the Salic Law (i.e. the Frankish civil law code compiled in around 500 AD by Clovis) but is absent from the law codes of other Germanic peoples such as the Burgundians, Alamanni, Bavarians, and Saxons. The Carolingian legislation furthered and enforced the ordeal: in 809 AD, Charlemagne ordered that “let all believe in the ordeal without any doubting.”
The purpose of the ordeal was profound. In an era without professional police forces, forensic science, or even a developed law of evidence, the ordeal served as a final arbiter for cases that could not be resolved by other means. The ordeal was “a device for dealing with situations in which certain knowledge was impossible but uncertainty was intolerable.” Within the English legal system, ordeal involved an appeal to God to assist in the detection of perjury and required priestly participation to mediate the necessary rapport with the deity. It was not a marginal curiosity but, for a time, a primary method of proof for serious accusations, particularly those involving hidden crimes, sexual misconduct or lack of certain proof such as witnesses or written evidence. The eventual abandonment of this practice in the 13th century would set the English common law on a path that, centuries later, would be carried to Hong Kong – a path that leads directly to the jury system, the burden of proof, and the rules of evidence that define our courts today.
B. How Ordeal Was Conducted: Fire and Water
The conduct of trial by ordeal – whether by cold water or by hot iron – was a highly ritualized and public event, subject to specific ecclesiastical and royal regulations.
The ordeal was never a spontaneous act. A man accused of a crime would, after a solemn three-day fast, pick up a hot iron, walk three paces, and put the iron down. His hand would be bandaged and sealed, then, after three days, inspected. If it was “clean” – that is, healing without suppuration or discoloration – he was innocent or vindicated; if the wound was unclean, he was guilty. The same principle applied to the ordeal of boiling water, where the accused had to pluck an object from a bubbling cauldron.
The cold water ordeal operated on an inverted logic. The accused would be bound and lowered into a pond. If the body sank, the water was deemed to have "received" it with God's blessing, and the accused was quickly retrieved. If the body floated, the water was said to have rejected the accused, and this was taken as proof of guilt.
Both forms of ordeal shared two important features. They were unilateral, usually undertaken by only one party in the case, and they required that the natural elements behave in an unusual way: hot iron or water not burning the innocent, cold water not allowing the guilty to sink. In this respect, they differed fundamentally from trial by battle, the other major form of divine proof.
The ordeal’s heyday lasted four centuries from 800 AD to 1200 AD. It was employed only when other ways of discovering the truth were not available – it was a last resort, not a first report. The ordeal existed in a judicial framework that recognized many other forms of proof, such as swearing an oath, compurgation, examination of written evidence or witnesses, or some form of inquest. In England, in fact, resolution of civil cases by the ordeals of fire and water was always rare; for example, property disputes were resolved by the duel more often than by hot iron or cold water.
C. Comparison: Ordeal vs. Trial by Battle
A reader of English legal history will also encounter trial by battle, another form of primitive proof. While both the ordeal and trial by battle belong to the category of “judgments of God,” they differ fundamentally in their mechanism and social logic. The following comparison can be drawn :-
Trial by Ordeal (Fire / Water)
Primary Mechanism: A physical test (fire, water) interpreted by a priest
Invocation of Divine Judgment: God changes natural properties of elements (hot iron does not burn the innocent; cold water rejects the guilty by making them float)
Role of the Church: Central. Priestly benediction and supervision were essential; numerous liturgical manuscripts survive showing this involvement
Bilateral or Unilateral: Unilateral (only one party undergoes the test)
Abolition: Abolished effectively in 1215 by the Fourth Lateran Council (as explained below)
Trial by Battle
Primary Mechanism: A judicial duel between the parties or their champions
Invocation of Divine Judgment: God grants victory to the party with the more just cause
Role of the Church: Minimal. The priest’s role was ancillary; the duel could be conducted with minimal priestly involvement
Bilateral or Unilateral: Bilateral (both parties, or their champions, actively fight)
Abolition: Continued longer; abolished in England in 1819, having fallen into disuse earlier
D. The End of the Ordeal: The Lateran Decree of 1215 and “Tempting God”
The dramatic abandonment of trial by ordeal in England and across the Western Christendom can be traced to a single canonical decree issued by the Fourth Lateran Council in 1215. Convened by Pope Innocent III, this ecumenical council expressly forbade clergy from participating in trials by ordeal, a prohibition that proved fatal to the practice. The papal decision was not a belated recognition of a long process of decline; on the contrary, the ordeal remained in active use throughout much of Europe at the time, especially in view of the fact that the right to hold ordeals was a form of property appurtenant to a church, producing revenue from fines, confiscations, and fees paid to the priests. Rather, the council's decree represented a deliberate policy choice, rooted in the ideological conviction that the ordeal was an illicit "tempting of God": an impious attempt to force divine intervention through a human ritual. The theological reasoning was that the ordeal constituted “tempting God”: human reason should be used to its utmost, and miracles are not guaranteed. A miracle is a free act of God; there is no regularly ordained procedure to procure it. If the ordeal were regarded as a miracle, it was a very improper one, since it involved a ritual that demanded a miraculous effect every time to be judicially useful. To be useful, the ordeal had to work every time, but this guaranteed result was precisely what made it an impious testing of God.
The intellectual attack on the ordeal had deeper roots. 9th century criticism by figures such as Agobard of Lyon argued that the ordeal was “an invention of men”, a proof that God never ordered, and that it was superfluous given that God had ordained judges and magistrates to decide cases by witnesses or oaths. Hincmar of Reims raised the discordance between hot and cold water ordeals. Most significantly, Pope Stephen V’s letter Consuluisti provided the first explicit papal condemnation: “the holy canons do not consider that a confession should be forced from anyone by the examination of hot iron or hot water … what is not sanctioned by the teaching of the holy fathers is a superstitious invention.”
The Lateran decree of 1215 proved decisive and removed the essential liturgical and supervisory role that the Church had long played in the ordeal, rendering the practice legally and theologically untenable. In England, the abolition of trial by ordeal was recognized in royal ordinances of 1219.
E. Replacement: The Rise of the Jury and the Use of Torture
With the ordeal rendered inoperable, the English legal system was forced to innovate. The primary replacement was the gradual expansion of the trial jury. Juries of presentment already existed in 12th century England, but their task was to indict felons, not to decide guilt or innocence. Over the course of the early 13th century, they developed into trial juries. The path of inclination for the English was to extend jury procedure to fill the enormous gap left by the abolition of ordeals.
A striking parallel could be drawn between ordeal and jury. The inscrutability of the jury’s verdict was reminiscent of ordeal procedure. As J. Jouon de Longrais puts it, “their verdict is accepted without discussion and formalistically. It has all the archaic firmness of the old proofs. It acts on the material question, the matters of fact, like a kind of ordeal. One cannot ask its reasons, still less begin it over again.” The jury bound the judges just as the ordeal had bound them. It is this inscrutable and binding quality that makes sense of the claim that “the jury was first seen as a new ordeal.”
However, the procedure that really blossomed in the 13th century, filling the role earlier played by the ordeal, was judicial torture. As the 13th century progressed, judicial torture was employed increasingly frequently, at first against suspected criminals in Italian cities, later by the Inquisition and by royal judges in France. This new solution differed from the old one in several ways. It was designed to extract a confession rather than swiftly reveal guilt or innocence. It made no appeal to God and did not depend on priestly involvement. It was heavily biased against the accused, since his only recourse was to endure torture, which could often be repeated. Torture, a judicial procedure in human hands, was more unrelenting than the judgment of God. Like the ordeal, torture was a last resort, used for “invisible” crimes of belief such as heresy and witchcraft, where full and acceptable proof was lacking but some presumption against the accused existed.
As judicial torture was distinctively rejected in the common law, the jury system thrived to profound long-term consequences for the common law tradition that Hong Kong inherits today.
F. Conclusion
The medieval trial by ordeal – born from Frankish custom, ritualized by the Church, and abandoned for tempting God – is not merely a curious footnote. Its abolition created a legal vacuum that gave rise to the jury, shifted the burden of proof, and reinforced the demand for rational, human-administered justice. These developments travelled with the common law and eventually taking root in Hong Kong, where they remain embedded in our legal system today.
To understand the ordeal is to understand the deep historical reasons why our courts look to evidence, not to miracles; to juries, not to priests; and to reason, not to fire or water. The modern court does not await a miracle; it examines evidence. It does not test God; it tests the credibility of witnesses. It does not bind wounds; it binds parties to the evidence.
G. Source and Further Reading
The factual content of this article is drawn from and summarizes the following two books :-
These books provided the historical foundation for the discussion of the origins, conduct, abolition, and aftermath of trial by ordeal, as well as its place within the broader evolution of the medieval legal system. Readers seeking a more detailed examination of the medieval judicial ordeal or the development of early legal procedure are encouraged to consult the original works.
Disclaimer: This material is provided for general information only. It does not constitute legal or other professional advice nor constitute any lawyer-client relationship between Sit, Fung, Kwong & Shum and any user or browser. No liabilities are assumed arising from any reliance of information in this material.
A prompt typed into a chatbot does not vanish when the window closes. Where it travels next and who may read it are set not by the lawyer's intention but by the provider's terms. On those terms may hinge the survival of legal professional privilege (LPP). The risk is no longer hypothetical in other common law jurisdictions. In UK v Secretary of State for the Home Department (AI hallucinations; supervision; Hamid),[1] the UK Upper Tribunal observed that uploading confidential documents into a publicly available AI tool such as ChatGPT would place the information in the public domain, breaching client confidentiality and waiving legal privilege.
No reported Hong Kong decision appears to have considered privilege in AI prompts, chat histories or outputs. Yet the use of AI in the legal setting is increasingly prevalent. A prompt may contain legal advice, witness evidence, litigation strategy, personal data or commercial secrets. When the question reaches the Hong Kong courts, the analysis is unlikely to begin with the prompt. The starting point may be the terms on which the tool was supplied.
Those terms are often accepted as part of registration or continued use but may receive little attention in day-to-day application. For present purposes, the key point is that the terms record what the provider may do with the material entered, and that is the question the confidentiality analysis examines.
When a subjective expectation of confidentiality is not enough
Under Hong Kong law, LPP is a substantive right protected under Article 35 of the Basic Law[2] and an absolute right that does not involve a balancing of interests. [3] That constitutional standing, however, is not what is in issue when client material is entered into a consumer AI tool. Two questions arise instead. The first is whether the confidentiality on which privilege depends survived entry into the tool at all. The second, where privileged material has in fact been disclosed, is whether that disclosure waived privilege and, if so, whether the waiver was complete or confined. Privilege is not lost unless intentionally waived by the holder, and a full waiver is not lightly inferred; whether the holder has waived, and the scope of any waiver, is assessed objectively from all the circumstances, in particular what was expressly or impliedly communicated and what the parties must or ought reasonably to have understood.[4]
That principle carries particular weight in this context. A lawyer entering client material into a consumer chatbot may subjectively intend to preserve complete confidentiality. Viewed objectively, however, the material has been transmitted to a commercial provider on that provider’s standard terms. Those terms, which the user accepts expressly or by conduct, are important evidence of the basis on which the material was provided. They may therefore be decisive on both questions, whether confidentiality was lost and whether any waiver was limited or at large.
When material enters the legal advice process
CITIC Pacific Ltd v Secretary for Justice and Commissioner of Police (No 2)[5] distinguishes pre-existing documents from material brought into existence as part of the process of obtaining legal advice. A document created in the ordinary course of events does not become privileged merely because it is later sent to solicitors, but information processed and reduced into documentary form for the dominant purpose of obtaining legal advice may form part of the protected legal advice process.
The distinction is relevant to AI-assisted work. Work performed on an approved enterprise system by a solicitor or supervised legal team, for example organizing documents, preparing a chronology or summarising factual material for counsel, may form part of that process. Where the same material enters an unapproved tool under terms permitting retention, model training, human review, third-party routing or overseas processing, the difficulty is no longer whether the output is privileged, but whether the confidentiality on which privilege depends survived the input.
The criteria for limited waiver
Whether a disclosure waives privilege at large, or only to a limited extent, turns on the recipient, the purpose and the surrounding circumstances. Hong Kong recognises such limited waiver. In CITIC Pacific Ltd v Secretary for Justice, the Court of Appeal held that privileged material provided to the Securities and Futures Commission (SFC) for a defined regulatory investigation was disclosed for that purpose only, and privilege was preserved against the rest of the world[6]. The reasoning was fact sensitive. The disclosure was made to the SFC, for the purpose of its investigation, and the Court considered the surrounding circumstances in deciding whether the waiver was limited. Those matters provide a useful lens for considering disclosure into consumer AI tools.
The contrast with consumer AI is obvious. Depending on the applicable terms, the relevant recipient may not be limited to the visible platform operator, but may include affiliates, contractors, reviewers, sub-processors or underlying model providers. The purpose may also extend beyond the client’s legal matter to service improvement, safety review, model training or other provider purposes. Where the terms reserve rights of retention, review or onward processing, it may be harder to characterize the disclosure as limited in the CITIC Pacific sense. Nor can a practitioner readily fall back on the principles governing inadvertent disclosure. Entering a prompt into a tool supplied on standard terms is deliberate conduct, even if the terms were not read. Whether that disclosure waived privilege, and the scope of any waiver, will be assessed by reference to the surrounding circumstances, including the terms governing the tool.
Whether the provider is an instrument or a third party
Not every disclosure to a third party defeats confidentiality. Privileged material passes routinely through translators, document processors and other agents who act as mere instruments of the lawyer’s work. Whether an AI provider belongs in that category, however, is not answered by analogy. It is answered by the contract and the actual deployment. An enterprise deployment or API arrangement under negotiated terms, with confidentiality undertakings, training disabled and no human review, may be closer to the ordinary service-provider arrangement. Consumer terms reserving rights to retain, train on or review inputs point in the other direction.
Sir Colin Birss, Chancellor of the High Court of England and Wales, has drawn the same distinction in a 2026 keynote speech on legal professional privilege in the age of AI. He observes that AI does not alter the legal tests for privilege, and that secure systems may be different from public or third-party systems.[7] Although the speech is not binding authority, it is useful because it reflects a judicial view that the dividing line lies in the arrangements under which the tool operates rather than in the technology itself.
What lawyers should check in consumer AI terms
As at 26 June 2026, major platforms take different approaches. The summaries below are indicative only. Terms change frequently and the current versions should always be checked.
Consumer AI tools & Key data-use risks
OpenAI – ChatGPT: Inputs may be used to improve models unless users actively opt out. [8] Chats in “Temporary Chat” mode will not appear in history, create memories or be used to train models.
Anthropic – Claude: If users allow chats or coding sessions to be used to improve Claude, Anthropic says such data may be retained for up to five years.[9]
Google – Gemini: Gemini expressly warns users against inputting confidential information. Chats reviewed by human reviewers may be retained for up to three years, even after deletion.[10]
Poe and other wrapper platforms: Poe explains that its bots are powered by third-party companies using large language models.[11] Wrapper platforms may involve additional data flows to third-party model providers and developers, including chat contents and uploaded photos or documents.
DeepSeek: DeepSeek’s privacy policy states that user inputs, prompts, uploaded files, feedback and chat history may be collected, and that personal data may be processed and stored in the People’s Republic of China.[12]
xAI – Grok: xAI’s consumer terms state that logged-in users can select whether User Content is used for product development or model training, and that deleted User Content may take up to 30 days to be queued for deletion.[13]
These differences are why a generic “approved AI use” policy is insufficient. Lawyers should identify the specific tool, account type, settings and permitted use cases.
Governance and the retainer
The regulatory direction is consistent with this terms-led approach. The Law Society’s 2025 circular[14] and the Privacy Commissioner’s Checklist on Generative AI[15] both treat prompts and outputs as material that may pass outside the firm’s control once entered, and direct firms towards internal policies, risk assessment and data-security controls. Those measures reach only the firm’s side of the retainer. Engagement letters should address the use of AI on both sides, because a firm’s controls may be undermined if the client independently feeds the same material into an uncontrolled system.
Where the prompt goes
When the first Hong Kong case arrives, the determinative question may concern the input as much as the output, namely whether confidentiality survived entry into the system. That question may fall to be answered by reference to the terms governing the tool. Those terms decide where the prompt goes, whether it is kept, trained on, reviewed, or sent elsewhere. The CITIC Pacific line of authority suggests different outcomes for controlled environments operating under negotiated terms and consumer tools operating under standard ones.
The risk lies less in the technology than in unmanaged disclosure into systems that were never designed to preserve the confidentiality on which legal advice depends. When that risk materializes, the decisive document may not be the prompt. It will be the terms of use under which the prompt was sent.
The views expressed are the author's own and this article is general information, not legal advice.
[1]UK v Secretary of State for the Home Department (AI hallucinations; supervision; Hamid) [2026] UKUT 81 (IAC) at [21], [60]. The judgment determined two matters heard together, the second being R (on the application of Munir) v Secretary of State for the Home Department. The Tribunal made its observations on confidentiality and privilege in its discussion of the first matter, in which an adviser had uploaded client correspondence and Home Office decision letters to ChatGPT. The Tribunal also noted at [21] that closed source tools which do not place information in the public domain may be used for tasks such as summarising without these risks.
[2]Basic Law of the Hong Kong Special Administrative Region, Article 35, which protects the right to confidential legal advice, access to the courts, choice of lawyers, timely protection of lawful rights and interests, and judicial remedies.
[3]CITIC Pacific Ltd v Secretary for Justice and Commissioner of Police (No 2) [2016] 1 HKC 157; [2015] 4 HKLRD 20 at [31], [36]–[38]; Secretary for Justice v Florence Tsang Chiu Wing (2014) 17 HKCFAR 739 at [27]–[29].
[4] CITIC Pacific Ltd v Secretary for Justice [2012] 4 HKC 1 at [52], [56].
[5]CITIC Pacific Ltd v Secretary for Justice and Commissioner of Police (No 2) [2015] 4 HKLRD 20; [2016] 1 HKC 157 at [42]–[45] and [52]–[54].
[6]CITIC Pacific Ltd v Secretary for Justice [2012] 4 HKC 1; [2012] 2 HKLRD 701 at [5], [7], [17], [54], [56], [73]–[76]. The Court of Appeal recognised partial waiver of privilege in Hong Kong and held that disclosure of privileged documents to the SFC for a defined investigation did not necessarily waive privilege against the world.
[7] Sir Colin Birss, Chancellor of the High Court, “Legal Professional Privilege in the Age of AI”, keynote speech to the City of London Law Society, 22 April 2026. See https://www.judiciary.uk/speech-by-the-chancellor-of-the-high-court-legal-professional-privilege-in-the-age-of-ai/
[8]OpenAI says users can opt out of default training through their privacy portal by clicking on “do not train on my content”. See https://openai.com/policies/how-your-data-is-used-to-improve-model-performance/
[9]Anthropic says users may choose whether chats or coding sessions are used to improve Claude, and that where users allow such use, data may be retained for up to five years; otherwise, the existing 30-day retention period continues. See https://www.anthropic.com/news/updates-to-our-consumer-terms
[10]Google’s Gemini Apps Privacy Hub warns users not to enter confidential information they would not want a reviewer to see or Google to use to improve services, and notes that some data may be retained for up to three years. See https://support.google.com/gemini/answer/13594961?hl=en
[11]Poe explains that its bots are powered by third-party companies using large language models. See https://help.poe.com/hc/en-us/articles/19944206309524-Poe-FAQs
[12]DeepSeek’s privacy policy says it may collect prompts, uploaded files, photos, feedback and chat history, and that personal data may be processed and stored in the PRC. See https://cdn.deepseek.com/policies/en-US/deepseek-privacy-policy.html
[13]xAI’s consumer terms further suggest that users can access the service without logging in, and in such cases and to the extent permitted, users grant xAI full rights to use any data provided to or obtained from the Service for product development and model training. See https://x.ai/legal/terms-of-service
[14]The Law Society of Hong Kong, Circular 25-824 (December 2025), enclosing the Professional Indemnity Scheme Risk Management Bulletin, Issue No. 15, “Generative AI in Legal Practice – Risks and Tips”. See https://www.hklawsoc.org.hk/-/media/HKLS/pub_e/circular/2025/25-824a1.pdf
[15]Office of the Privacy Commissioner for Personal Data, “Checklist on Guidelines for the Use of Generative AI by Employees”, March 2025. The checklist is intended to help organizations develop internal policies or guidelines for employee use of generative AI at work while complying with the Personal Data (Privacy) Ordinance. See https://www.pcpd.org.hk/english/resources_centre/publications/files/guidelines_ai_employees.pdf
This article, by our Trainee Solicitor Christy Hui, first appeared in the June 2026 issue of the Hong Kong Lawyer, the official journal of The Law Society of Hong Kong.
Hostile behaviour is unfortunately increasingly common in Hong Kong and elsewhere, especially in view of the advance of the technology and the social media. Unwelcome conduct is performed as a tactic to achieve various objectives, such as ex-spouses attempting to save relationships, creditors trying to collect debts and competitors trying to drive each other out of business. Such hostile behaviour also takes various forms, such as spam calling the victims, spreading untrue statements about the victim and making unwelcome visits to the victims’ homes.
When such hostile behaviour crosses the line from being merely annoying to being actionable in law, victims may seek redress from the court. The current legal framework in Hong Kong addressing hostile behaviour is a patchwork of multiple causes of action stemming from common law and statutes.
This article aims at providing a brief introduction to some of the common causes of action related to hostile behaviour. Some of the causes of action closely relate to criminal offences. Criminal offences are virtually exclusively prosecuted by the Government and are hence out of the scope of this article.
1. The Tort of Harassment: Repeated unreasonable oppressive conduct
The tort of harassment has recently been recognized by the Court of Final Appeal in Sir Elly Kadoorie & Sons Limited v Samantha Jane Bradley [2026] HKCFA 2.
If someone is relentlessly targeting you with unwanted behavior, calls, or messages, they may be committing the civil tort of harassment. You must establish the following elements before you can succeed in a claim for the tort of harassment:
If the tort of harassment is established, the remedies can include:
A claim in the tort of harassment is not available to companies as mental distress to the claimant must be shown. However, harassment targeted at a company is often conducted through imposing unpleasant conduct on its employees, such as spam emailing its employees. In such a case, a company may nevertheless apply for an injunction to restrain harassment directed at its current employees. The rationale behind this power is that employers owe a duty to employees to provide a safe working environment.
2. Causing loss by unlawful means: Harming one’s economic interests by interfering with the actions of a third party by unlawful means
While it was ruled in Sir Elly Kadoorie & Sons Limited that claims in the tort of harassment are not available to companies, the Court of Final Appeal opined that the company in that case may potentially make a claim in the tort of causing loss by unlawful means.
The tort of causing loss by unlawful means covers situations where instead of taking actions against you directly, the defendant uses unlawful means to interfere with the actions of a third party which causes you economic loss.
The essential elements are:
The meaning of “unlawful means” in the second element has been considered in the landmark case of OBG Ltd and Another v Allan and Others [2008] 1 AC 1. The majority held that the unlawful means used must be an action (such as fraud or a threat) which would be independently actionable by that third party if he had suffered any loss because of it. This interpretation is consistently adopted in Hong Kong courts. In Sir Elly Kadoorie & Sons Limited, for example, the defendant harassed the claimant’s employees by sending an excessive number of emails to them making false allegations against the claimant. The acts of harassment against the claimant’s employees gives rise to an independent right for the employees to claim against the defendant any loss suffered as a result.
The primary relief upon a successful claim in causing loss by unlawful means is the compensation for loss or damage suffered as a result of the defendant's unlawful interference. In suitable cases, the court may grant an injunction restraining the defendant from interfering with the third party in the future.
3. Private nuisance: Hostile behaviour targeted at homes
Sometimes, hostile behaviour is directed at the homes of victims. The most well-known example is perhaps splashing red paint at the door of the debtor’s home as a tactic for debt collection.
A claim in private nuisance is a cause of action based on your right to enjoy your property. To sue on this claim, you must have a legal interest in the land, such as being the owner or the tenant named on the lease. In the vast majority of cases, it involves unwelcome conduct targeted at victims’ homes.
In the context of hostile behaviour, you will have a claim in private nuisance when the defendant commits an act which interferes with or disturbs your exercise or enjoyment of your ownership or occupation of land. The interference must not be trivial – it must be a substantial interference with comfort or convenience, judged according to the standard of a reasonable person. While this will essentially be a fact-sensitive question, it is at least arguable that conducts such as persistent splashing of paint at your home, aggressive visits and banging on the door of your home may fall within actionable examples.
Traditionally for a claim in private nuisance to be established, the defendant must be a neighbour of the plaintiff in the sense that the defendant should be an owner/occupier of neighbouring land. The landmark case of Hunter & ors v Canary Wharf Ltd [1997] AC 655 stated that “[private] nuisance is a tort protecting property rights. It is concerned with the activities of the owner or occupier of property within the boundaries of his own land which may harm the interests of the owner or occupier of other land.” There are cases in Hong Kong following this approach. For example, in MA (HK) Ltd & Anor v Yeung Yuk Sing (楊育城) & Ors [2017] HKCU 2762, a claim in private nuisance was rejected as the defendant was not owners/occupiers of neighbouring land. However, there is also case example such as Shen Xing (沈星) v Li Jun (李軍) [2014] HKCU 930 where a claim in private nuisance succeeded without such a neighbour relationship. It would appear that different outcome may partly due to the different degree, extent, and reasonableness of the interference in different cases but it highlights the potential limited application of this cause of action for interference made by strangers, thereby other causes of action (such as tort of harassment) may also need to be relied on.
The usual remedy for private nuisance is compensation for losses resulting from the nuisance (such as the reduction in the value of the property). In suitable cases, the court will also grant an injunction restraining the behaviour in question.
4. The Tort of Intimidation: Coercion Through Threats
Hostile behaviour can take the form of forcing victims into doing something they would not have done by unlawful threats. The core issue of the tort of intimidation is to coerce you into doing something against your will, causing you mental damage or financial loss.
If you intend to rely on the tort of intimidation, you must establish the following:-
As recognized by the House of Lords in the landmark case of Rookes v Barnard [1964] AC 1129, a threat to breach a contract is recognized as an “unlawful means” for the purpose of the first element. Other examples of threats to use “unlawful means” include threats to commit a tort, a crime or a breach of trust.
Upon a successful claim of the tort of intimidation, compensation for mental distress and financial loss will typically be awarded. An injunction restraining the defendant from continuing with the complained threatening acts may also be granted. If you have been coerced into entering into a contract, you will have the option to set aside the contract and be returned to the financial position before the contract was made.
5. Relief against hostile behaviour under specific statutory provisions
Other than torts, statutes may also provide causes of action to victims of hostile behaviour in specific cases.
The Personal Data (Privacy) Ordinance (“PDPO”) (Cap.486) may be helpful in certain cases where misuse of personal data is involved. Under section 66 of the PDPO, an individual who suffers an injury to feelings or financial loss by reason of a contravention of a requirement under the PDPO by a “data user” which relates, at least partly, to his/her personal data may seek compensation from the “data user” in respect of the financial or psychological damage. The term “data user” is defined as “a person who, either alone or jointly or in common with other persons, controls the collection, holding, processing or use of the data” in section 2 of the PDPO. With the requirement that compensation can only be sought from a “data user” in respect of the wrongdoings of that “data user”, its applicability to harassment cases is limited.
In addition, sections 3, 3A and 3B of the Domestic and Cohabitation Relationships Violence Ordinance (Cap.189) provides for the grant of an injunction in favour of victims of molestation in specific familial or cohabitation relationships.
6. Concluding remarks
If you are unfortunate enough to fall victim to hostile behaviour, documentation is your most important weapon. Whatever cause of action you rely on, and regardless of whether you are seeking compensation, injunctive relief or both, you must show that the unwelcome conduct you complain of did occur. It is advisable to keep a written record of the unwelcome conduct. If spam calling is involved, obtain the relevant phone call records from your telecom service provider. If physical disturbance with your home is involved, consider installing a CCTV at your door and making a report to the management office for them to log the incidents.
The above causes of action are not exhaustive. In appropriate cases of hostile behaviour, other causes of action can be relied on. Nevertheless, the causes of action often overlap with each other and it is common to make claims based on multiple causes of action. When making a claim in respect of hostile behaviour, given the wide range of causes of action that may be available, it may be advisable to seek legal advice.
This article is co-authored by our Partner Sidney Ho and our Trainee Solicitor Samuel Chow.
Disclaimer : This material is provided for general information only. It does not constitute legal or other professional advice nor constitute any lawyer-client relationship between Sit, Fung, Kwong & Shum and any user or browser. No liabilities are assumed arising from any reliance of information in this material.
