Introduction
Over the past twenty years, some Hongkongers have taken up residence abroad, many settling in the United Kingdom, Canada, Australia and other jurisdictions. In more recent years, as some families now consider return migration to Hong Kong, a frequently misunderstood question then arises: what is the right of abode status of children born to those parents overseas?
Many families assume that their children born overseas can automatically "inherit" Hong Kong permanent resident status. That assumption is often misconceived. The real starting point is the child's nationality at birth, which typically determines whether the child can rely on the Chinese descent route to the right of abode, or must instead qualify personally under the non-Chinese route. In many cases, the result is that the parents may return and reside in Hong Kong as permanent residents, while their children cannot rely on the same route and must face years of personal residence before any entitlement. A common and particularly striking example concerns families who emigrated to the United Kingdom under the British Nationality (Hong Kong) Selection Scheme or the later British National (Overseas) (BN(O)) route. Some parents who remained In the United Kingdom and acquired British citizenship or settled status there may assume that, because they retain Hong Kong permanent resident status and continue to be treated as Chinese nationals for the right-of-abode purposes, their overseas born children stand in the same position. They often do not. Understanding why requires close attention to the statutory framework, the Nationality Law of the People's Republic of China (PRC Nationality Law), and the case law on permanence.
The Statutory Framework
Article 24(2) of the Basic Law sets out the categories of Hong Kong permanent resident. Schedule 1 to the Immigration Ordinance (Cap. 115) (the Ordinance) provides the operative framework. For present purposes, two routes matter most:
a. the Chinese route under paragraphs 2(a)-(c) of Schedule ; and
b. the non-Chinese route under paragraph 2(d) of Schedule 1.
These two routes Impose materially different requirements.
The Chinese Route
For children of Hong Kong permanent residents born abroad, the key provision Is paragraph 2(c) of Schedule 1 (the descent route). The practical attraction of this route is dear because It dispenses With the seven years' personal residence requirement. However, It Is only available If the child was a Chinese national at birth and the parent was already a Hong Kong permanent resident when the child was born. The nationality question is often where the case succeeds or falls. Whether a child born abroad is of Chinese nationality often turns on Article 5 of the PRC Nationality Law. A child born abroad to a Chinese national parent generally has Chinese nationality unless the parent had "settled abroad" and the child acquired foreign nationality at birth. The Immigration Department's published guidance gives a clear illustration: where the parent is an "overseas resident" (e.g. a holder of the United States green card or United Kingdom's indefinite leave to remain) and the child acquires foreign nationality at birth, the child does not have Chinese nationality for Article 5 purposes and paragraph 2(c) route of Schedule 1 is usually unavailable, irrespective of the parent's own continued treatment as a Chinese national and Hong Kong permanent resident. Many families only discover this after refusal. The significance of this is that the paragraph 2(c) of Schedule l is concerned with conditions as they stood at birth. Later changes in the parent's status do not retrospectively cure a deficiency at that time.
Families sometimes ask whether the position can be revisited, for example, by renouncing the child's foreign nationality. Such options are highly fact-sensitive and require specialist advice in the PRC.
The Non-Chinese Route
Where the Chinese route is unavailable, the child cannot derive Hong Kong permanent resident status from the parent and must qualify personally under paragraph 2(d) of Schedule 1, which requires seven years of continuous ordinary residence in Hong Kong immediately before the application (aggregate residence is insufficient) and Hong Kong being taken as the place of permanent residence.
The Ordinary Residence Requirement
The "immediately before" rule is strict (Schedule 1, paragraph 1(4)(b)). As Fateh Muhammad v Commissioner of Registration [2001] HKCU 662 makes clear, the qualifying period must run directly up to the application itself; aggregate residence over a longer period is insufficient.
Certain periods are excluded from ordinary residence by section 2(4) of the Ordinance and may interrupt continuity. In this connection, Vallejos v Commissioner of Registration [2013] 16 HKCFAR 45 confirmed the meaning of "ordinary residence" under Article 24(2)(4) must be interpreted in light of context and purpose, and that immigration status of the residence is relevant to that analysis. In the particular case of foreign domestic helpers (FDH), the highly restrictive conditions governing their admission and stay meant that their residence was what the CFA determined as being "qualitatively so far removed from what would traditionally be recognized as "ordinary residence'"" as to fall outside Article 24(2)(4).
Temporary absences, however, do not necessarily break continuity. Section 2(6) of the Ordinance provides that a person does not cease to be ordinarily resident merely because of a temporary absence, having regard to its reason, duration and frequency. Whether, and in what circumstances, section 2(6) can preserve continuity in more complex cases remains a question requiring careful attention on the facts of the individual case.
The seven-year requirement is strict not only in duration alone. In Nowodzelski v Director of Immigration [2018] HKCA 295, the Court of Appeal reiterated that a person who had no lawful right to remain in Hong Kong after expiry of his limit of stay could not rely on that period as constituting ordinary residence for paragraph 2(d) of Schedule 1. That approach is also consistent with the strict operation of the ordinary residence requirement illustrated by Li Mengzhi v Commissioner of Registration [2024] 2 HKC 330 and, on appeal, [2026] HKCA 246. The applicant had in fact lived in Hong Kong for many years, but once her landing was treated as unlawful, section 2(4)(a)(i) prevented that period from counting as ordinary residence, with the result that she could not satisfy the seven-year requirement for permanent resident status.
The Permanence Requirement
Ordinary residence alone is not sufficient. The applicant must also satisfy the permanence requirement identified in Prem Singh, namely that Hong Kong has to be treated as a long-term home, demonstrated by objective facts consistent with that intention (Prem Singh v Director of Immigration [2003] 6 HKCFAR 26).
Schedule 1, paragraph 3 lists relevant indicators to that evaluation such as whether the applicant normally lives in Hong Kong, whether close family members are here, whether the applicant has a reasonable means of support, and whether they have paid tax in Hong Kong. No single factor is decisive, but the family's "centre of life" often carries decisive weight.
But Prem Singh should not be read as imposing a rigid checklist of "concrete steps". As clarified in Gutierrez Joseph James v Commissioner of Registration [2015] 1 HKC, permanence imports both subjective and objective elements and must be assessed in light of all evidence. Conduct, surrounding circumstances, and arrangements made on the applicant's behalf may all be relevant.
Read together, Prem Singh and Gutierrez establish that permanence is neither a purely formal declaration nor an impossible standard requiring the applicant to sever all foreign links. The courts require a fact-sensitive assessment of whether Hong Kong has genuinely been taken as the permanent home.
Why Birth Location Matters
As the analysis above demonstrates, birth location can materially affect the routes available. If a child is born overseas after the parent is treated as "settled abroad", Article 5 of the PRC Nationality Law will usually close the Chinese descent route at birth.
Two practical steps may preserve options. First, the birth may occur before the parent obtains foreign settled status, for example while still on a time-limited BN(O) or skilled-worker visa. Second, the family may consider giving birth in Hong Kong which may preserve eligibility under paragraph 2(a) of Schedule 1 or, for children under 21 born to category (d) parents, paragraph 2(e).
Paragraph 2(e) is notable because it shows that the Ordinance does make a limited, express provision for children born in Hong Kong to a category (d) parent. The absence of any equivalent provision for children born outside Hong Kong is therefore unlikely to be accidental It reflects a deliberate distinction in the statutory scheme.
Challenging a Refusal
The primary remedy is an appeal to the Registration of Persons Tribunal under section 3D of the Registration of Persons Ordinance (Cap. 177). The 90-day deadline is strict. The Tribunal determines the factual entitlement to the right of abode, not the rationality of the Commissioner's decision. Judicial review is a secondary remedy where the refusal is treated as a Director of Immigration decision or where a discrete public law error exists.
For practitioners, the strategic priority is identifying the decisive legal issue early. Depending on the case, that may be the child's nationality at birth, the parent's foreign immigration status at the time, excluded periods under section 2(4), satisfaction of the "immediately before" or the permanence requirement. The more precisely the case is framed, the more focused both the evidence and any challenge route can be.
Practical Guidance
For paragraph 2(d) cases, evidence should be assembled separately for residence and permanence. Residence evidence should establish continuity. Permanence evidence should address whether Hong Kong is the family's genuine centre of life, including financial and tax ties, family accommodation, schooling, healthcare, and sometimes the extent to which overseas connections have been maintained or wound down. A chronology proving physical presence will not, by itself, satisfy the permanence question. Conversely, bare assertions of long-term intention will not overcome a weak factual case on residence.
Where the applicant is a child, the Gutierrez principle requires particular attention. The evidence must address what arrangements the parent or guardian has made on the child's behalf and critically, what would secure the child's continued residence if the parent's own immigration position changed. That evidential gap was central in Gutierrez itself and should be anticipated in every child case.
Timing the application is crucial. The application should be made when the applicant can demonstrate a continuous qualifying period running right up to the filing date. Premature filing before the qualifying period is complete risks the entire claim.
Parents holding category (d) status should also be advised that the same permanence test applies to them on an ongoing basis. Prolonged absence and a settled life abroad can jeopardise their own status under Prem Singh, with knock-on effects for any dependent visas.
Summing up
A striking feature of the current framework is that parents may remain Chinese nationals and Hong Kong permanent residents, yet their overseas-born child may not be able to rely on the Chinese descent route. If the parents may return to Hong Kong as permanent residents, families may reasonably ask why the child must instead qualify independently through a continuous seven-year period of ordinary residence, even where the child is lawfully permitted to remain in Hong Kong. The anomaly may have other practical consequences. For example, when traveling to the Mainland, the family unit may be placed under different documentary regimes. In such a case, the split in status may do more than create administrative inconvenience. For those unfamiliar with this area of law and practice, the distinction may be difficult to reconcile.
At the level of legal analysis, the framework produces outcomes that are largely predictable once the child's nationality at birth and the parent's overseas immigration status at the relevant time are identified. These two facts will often determine whether the Chinese descent route under Schedule 1 paragraph 2(c) is available. Where it is not, paragraph 2(d) generally requires personal qualification through a continuous seven-year period of ordinary residence immediately preceding the application, together with a substantiated permanence case by objective evidence.
Taken together, the case law reflects a strict but consistent judicial approach. Permanence is a constitutional criterion to be assessed objectively in light of all relevant circumstances, while the seven-year ordinary-residence requirement operates strictly as to both duration and quality of stay.
As cross-border mobility becomes an increasingly ordinary feature of family life, the application of the right-of-abode framework to overseas-born children of Hong Kong permanent residents is likely to remain an important and recurring issue in Hong Kong immigration law.
This article is co-authored by our Partner Peter Sit and our Trainee Solicitor Christy Hui.
This article first appeared in the June 2026 issue of the Hong Kong Lawyer, the official journal of The Law Society of Hong Kong.
Background
The signing of the Arrangement on Mutual Service of Judicial Documents in Civil and Commercial Proceedings between the Mainland and the Hong Kong Special Administrative Region on 20 April 2026 marks a transformative milestone in the judicial history of cross-border disputes (“New Arrangement”).
The New Arrangement addresses the limitations in the previous 1999 regime by introducing multimodal service options, including electronic service, and by streamlining court-to-court entrustment through digitalization to accommodate the surge in cross-border cases, thereby aligning judicial mechanisms with the digital realities of modern commerce, and enhancing litigation efficiency.
Historical Foundation: The Old Arrangement in 1999 and the Need for Reform
The origins of mutual service between Hong Kong and the Mainland are rooted in Article 95 of the Basic Law, which empowers the Hong Kong to maintain judicial relations with the legal departments of other parts of the country. Shortly after the handover, the Arrangement for Mutual Service of Judicial Documents in Civil and Commercial Proceedings between the Mainland and Hong Kong Courts was established in 1999 to provide a formal channel for cooperation with court-to-court entrustment as the service channel (“Old Arrangement”).
Under the Old Arrangement, service was conducted through a centralized, high-level administrative process. Requests were channeled through the High Court of Hong Kong and the various Higher People’s Courts in the Mainland. While this provided a stable and fixed legal basis, it somehow lacked flexibility in the rapid expansion of cross-border commerce. Practitioners often experienced delays in attempting service, leading to additional costs and procedural uncertainty.
The limitations of the Old Arrangement became even more pronounced during the COVID-19 pandemic, which highlighted the gradual obsolescence of a system that solely depended on physical transmission and personal delivery. After 27 years of implementation, the Old Arrangement deserves a full review and upgrade. The New Arrangement enhances the service process through retaining the core entrustment mechanism and adding diverse means to ensure timely and effective service.
The New Arrangement: Scope and Multimodal Framework
The New Arrangement applies to judicial documents in civil and commercial proceedings where service must be effected across the border. Article 2 defines “civil and commercial proceedings” broadly, encompassing matters that are civil or commercial in nature under the laws of either jurisdiction (with only a few exclusions). The types of litigation-related documents covered are exhaustive, ensuring that practitioners can utilize the Arrangement at every stage of legal proceedings, from the originating process to the enforcement of judgments.
Article 3 introduces the revolutionary principle of multi-modal service, allowing for court-to-court entrustment, electronic service, postal service, service by authorized persons, and public announcement. The advantages of a multi-modal service regime are two-fold.
First, there was only one option under the Old Arrangement i.e. through the courts, yet there are various options for means of service under the New Arrangement.
Second, these modes can be used in parallel. If a plaintiff attempts service via multiple channels, the date of service is determined by whichever mode first achieves successful delivery. This eliminates the previous “wait-and-fail” cycle, allowing parties to pursue the most efficient path to commencing their action.
Option 1: Electronic-supported Court-to-court Entrustment
While the New Arrangement expands service options, court-to-court entrustment remains a vital pillar of mutual assistance. Article 4 decentralizes this process, allowing the Supreme People’s Court to authorize certain intermediate people’s courts and primary people’s courts to entrust service directly to the High Court of Hong Kong, following consultation with the Hong Kong Judiciary.
Articles 5 and 6 lay out the standards for electronic transmission and language. Judicial documents transmitted electronically between courts are now granted the same legal effect as physical originals. To prevent procedural errors, the entrusting court shall produce a letter of entrustment in Chinese when requesting for service of judicial documents. If the underlying judicial documents are in English or another language, they must be accompanied by a Chinese translation. Furthermore, when serving a Hong Kong registered company, the letter of entrustment must include a printed copy of the company’s latest registered address from the Hong Kong Companies Registry, ensuring that documents reach the correct legal entity.
Option 2: The Digital Leap – Electronic Service
The gist of the New Arrangement is the inclusion of electronic service. Article 14 permits service via facsimile, electronic mail, mobile communications, and other instant-receipt systems, provided that receipt by the intended party can be ascertained. This provision effectively brings electronic means into the formal legal framework of cross-border litigation, provided one of the specific conditions of (i) express consent, (ii) voluntary provision or (iii) acceptance by conduct are met. Please refer to the table of descriptions of each specific condition for electronic service.
Electronic service may be helpful as personal service via the Mainland courts under the Old Arrangement may sometimes be unsuccessful. Besides, electronic service would cater the modern reality that parties travel across the whole country and no longer base in a particular city or fix oneself to a particular address.
Options 3-5: Other Means of Service
Postal Service and By Leaving
Beyond digital channels, the New Arrangement formalizes postal service and service by authorized persons, providing a robust set of alternatives to court bailiffs. Under Article 8, the courts in Hong Kong and Mainland may effect service of judicial documents by direct service, postal service, electronic service, service by leaving at the addressee’s place and service by public announcement provided in Article 17 of the New Arrangement.
Law Firms or Notarization Institutions
Article 15 also introduces service by third party authorized institution. Mainland courts may authorize service in Hong Kong by Hong Kong law firms or registered foreign law firms. Conversely, Hong Kong parties may effect service in the Mainland through Mainland law firms or notarization institutions. Instead of waiting for court-to-court entrustment, parties can use a designated professional to attempt service directly, which can facilitate the legal proceedings and reduce delay in service.
Public Announcement
When all direct attempts to serve on the recipient fail, Article 17 provides for service by public announcement. Service by public announcement is deemed effective 60 days after the date of publication. This 60-day period is a standardized timeframe that provides legal certainty for the court to move forward with the proceedings, even if party remains absent. From our firm’s experience, service of documents under the Old Arrangement may take more than 60 days.
Transitioning the Legal Framework: From Old to New Arrangement
The New Arrangement is a treaty-like agreement that requires implementation through domestic law. In Hong Kong, it requires amendments to rule 5A of Order 11 in Rules of the High Court which currently prescribes the rigid court-to-court process for serving writs in the Mainland.
The New Arrangement would only take effect once the legislative procedures are completed and the Supreme People’s Court has issued its corresponding judicial interpretation. During the transitional period, the Old Arrangement remains in force.
Insights
Legal practitioners, corporate groups and cross-border business entities are advised to stay close with the development and implementation of the New Arrangement. Meanwhile, the following matters would deserve deeper consideration.
First, regarding the specific conditions for electronic service, voluntary provision by the defendant and acceptance by conduct of the defendant might be rare. Therefore, it is imperative that the plaintiff will have the defendant’s prior express consent. Practically speaking, contracting parties who anticipate the potential need of enforcing the contract (and their legal representatives) may consider the incorporation of relevant clauses in advance to record the parties’ express consents for electronic service of legal documents arising from contractual disputes.
Second, as much as the benefits lie on the plaintiffs (or the parties enforcing a contract), the New Arrangement may be less welcomed by defendants as it shorten the time between the plaintiff’s originating documents and the time of actual or deemed service). Defendants on receipt of originating documents, even by electronic service, should seek Hong Kong legal advice as soon as practicable.
Third, there has been legislative discussions on whether, or to what extent, the application and requirements of electronic services of local HK-to-HK service procedures are tallied or synchronized with cross-border service procedures under the New Arrangement. The underlying spirit is that local HK-to-HK service procedures should be no less practicable and effective than cross-border service procedures.
In any event, the ability to efficiently serve judicial documents across the border is essential for managing the complex disputes that inevitably arise in international trade and finance. By aligning the legal mechanisms of the two jurisdictions, the New Arrangement reduces the uncertainty and hurdles in procedures, making Hong Kong an even more attractive seat for arbitration and litigation.
This article is co-authored by our Partner Mathew Liu and our Trainee Solicitor Jaimie Ho.
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 on the information in this material.
Sit, Fung, Kwong & Shum is a Hong Kong law firm and does not practice or provide legal advice on the laws of other jurisdictions. References to the laws and practice of any other jurisdictions in this material are provided for general reference and comparative purposes only, and do not constitute any advice, opinion or representation on the law or practice in those jurisdictions.
Introduction
In some jurisdictions, a married person entering into a share transaction may be asked to do something relatively uncommon in Hong Kong: provide a signed consent from his/her spouse. In certain jurisdictions such as the Chinese Mainland and some community property states in the United States, certain assets acquired before and/or during marriage may be regarded as community properties jointly owned by the couple. If an individual acquires or sells shares and his/her spouse later asserts a claim to them, say upon divorce, ownership disputes will arise. To mitigate such risks, some jurisdictions have developed the practice of requesting the spouse of the vendor to provide written consent to the transaction and waive any interest in the shares.
Does this practice have any place in Hong Kong? This article examines that question in the context of sale and purchase of shares of a company incorporated in Hong Kong.
What is the Matrimonial Property Regime in Hong Kong?
Separation of property
Hong Kong essentially has a separate property regime. Under section 4(1) of the Married Persons Status Ordinance (Cap. 182) (MPSO), all property belonging to a married woman at the time of her marriage, or acquired by her afterwards, shall belong to her in all respects as if she were unmarried and may be disposed of accordingly. This abolished the common law doctrine of coverture, under which a married woman’s legal identity would merge with that of her husband and the husband would acquire all property belonging to her at the time of the marriage or acquired by her during the marriage. Accordingly, in Hong Kong, each spouse owns and is free to dispose of his/her property, whether acquired before or during the marriage.
Division of assets on divorce
It is when a marriage breaks down that the question of division of assets arises. In divorce proceedings, the court first determines the assets available in the matrimonial pot and then decides how to divide them between the spouses to achieve fairness. It is empowered to make, among others, property adjustment orders for the transfer of properties (such as shares) from one party to the other. The spouses may have signed a pre‑ or post-nuptial agreement regarding how they wish to divide their properties upon divorce. Such agreement will be given appropriate weight by the court with regard to all the circumstances of the case but is not legally binding.
Is Spousal Consent Legally Required for a Valid Share Transfer?
As mentioned above, a married person can hold properties, including cash and shares, as his/her own assets and deal with them independently. Therefore, neither the vendor nor the purchaser needs their spouse’s consent for the share transfer to be legally valid. If, however, the vendor’s spouse has a beneficial interest in the shares (for example, because the vendor holds the shares as a nominee/trustee for the spouse), the solution is not to obtain any spousal consent, but to make the beneficial owner one of the parties to the transaction and the relevant transaction documents.
Can a Party’s Divorce Unravel a Completed (or Pending) Transaction?
Despite the separate property regime, a divorce can technically cast a shadow over an M&A transaction already closed or about to close. This is because of section 17 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) (MPPO), which empowers the court to avoid asset transfers by a spouse that are intended to frustrate potential matrimonial claims of the other spouse.
How section 17 of the MPPO works
If a party to the marriage has made, or is about to make, a disposition of property (such as a transfer of shares or payment of purchase price) with the intention of defeating the other party’s claim for financial provision, the court may make orders to set aside the disposition made or restrain the disposition from taking place. If the disposition (i) took place less than 3 years before the section 17 application or (ii) is about to take place, then so long as the court is satisfied that it has defeated or would defeat the other party’s claim for financial provision, an intention to defeat the claim is presumed.
Risk is remote in normal circumstances
While theoretically speaking every share sale and purchase can be subject to challenge under the MPPO upon the counterparty’s divorce, the risk of it being set aside should be rather remote for most arm’s-length transactions:
When Should Spousal Consent be Considered?
When the alarm bells ring
There are, however, circumstances which might put a party to the transaction on enquiry. For example:
In such situations, legal advice should be obtained on whether to request a spousal consent or waiver from the counterparty before entering into the transaction.
What spousal consent can and cannot do
A signed consent or waiver given by the counterparty’s spouse is unlikely to oust the jurisdiction of the family court or completely prevent the spouse from challenging the transaction under section 17 of the MPPO. Nonetheless, evidence that the transaction was entered into with the spouse’s consent may make it significantly more difficult for the spouse to argue later that the transaction was intended to defeat financial provision claims. In the case of a resulting trust claim, it may also help establish the purchaser’s status as a bona fide purchaser for value without notice, strengthening the “equity’s darling” defence.
Standard protections in M&A deals
Situations warranting a request for spousal consent are expected to be relatively rare. It is not standard practice in Hong Kong to make such a request for every M&A transaction. In the absence of red flags such as those mentioned above, asking a counterparty to provide – and have their spouse sign – a document that contemplates marital breakdown and division of assets between them may be seen as unreasonable and even offensive.
For a purchaser, apart from conducting the necessary legal due diligence, the standard protection is to request customary warranties and indemnities in relation to the vendor’s good title to the shares, free from any third‑party interests. The purchaser can bring a claim for a breach of warranty and/or seek indemnities from the vendor.
For a vendor concerned about the purchaser’s ability to pay, the common solution is to request a guarantee from a person or entity of sufficient financial standing, or a security over other assets.
Does it Make any Difference if the Counterparty has a Matrimonial Domicile in Another Jurisdiction?
Hong Kong follows the lex situs rule for the creation and transfer of property: in general, the validity and effect of a transaction are governed by the law of the place in which the target property is sited. For shares in a Hong Kong company, their transfer should be governed by Hong Kong law and should follow the formalities under Hong Kong law, which does not require any spousal consent of the parties.
However, where a counterparty does not have any or sufficient connections with Hong Kong, that may give rise to other considerations. For example, if the counterparty later breaches the sale and purchase agreement but has no other assets in Hong Kong and has not provided any security, the innocent party may need or choose to enforce a Hong Kong judgment against the counterparty’s foreign assets. It is uncertain whether (and if so, the extent to which) this can be done if the counterparty’s spouse has an interest in those foreign assets under the foreign matrimonial property regime. In such cases, legal advice should be obtained in Hong Kong and the relevant jurisdiction. Therefore, in case there is any serious doubt as to the counterparty’s ability to fulfill its contractual obligations or satisfy a Hong Kong judgment in case of any breach, a party may consider the necessity of other solutions, such as obtaining a guarantee, security or perhaps the counterparty’s prior spousal consent to enforcement against foreign assets in the first place.
Conclusion
While it may be the practice in some jurisdictions to request the counterparty’s spousal consent for a commercial transaction, it is not normally required and adopted for a Hong Kong M&A deal. In certain circumstances, however, such as where a share transaction is to be made at a substantial undervalue or the counterparty’s spouse is known to have contributed to the acquisition of the target company with his/her funds or to the improvement of its value as outlined above, legal advice should be obtained to mitigate the legal risks.
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 on the information in this material.
Sit, Fung, Kwong & Shum is a Hong Kong law firm and does not practice or provide legal advice on the laws of other jurisdictions. References to the laws and practice of any other jurisdictions in this material are provided for general reference and comparative purposes only, and do not constitute any advice, opinion or representation on the law or practice in those jurisdictions.
Background
A decade ago, during my time as a biomedical engineering student at Imperial College London, Hong Kong’s strategic priorities were largely centered on finance and real estate development, with comparatively limited emphasis on innovation and technology-driven growth. In recent years, however, fostering innovation and technology has become one of Hong Kong’s key priorities. In my view, Hong Kong has strong potential to develop into one of the leading biotech hubs by leveraging its strategic position within the Greater Bay Area (“GBA”), its role as an international financial centre and its well-established, internationally respected legal system.
A key development strategy for Hong Kong is South-North dual engine (「南金融、北創科」), with the financial services continuing to develop at the Harbour Metropolis, whereas the new engine for innovation and technology will be positioned at the Northern Metropolis. The Hong Kong government is committed to accelerate the development of the Northern Metropolis which includes, among others, building new railway lines to improve connectivity to and from the area, developing the San Tin Technopole, and engaging major corporations—such as pharmaceutical companies—to establish a presence in the Northern Metropolis. The Northern Metropolis is built to attract global talents and enterprises while also cultivating local talent for the future.
What is Biotech?
“Biotech” is an abbreviation of biotechnology, meaning the manipulation of biological process, systems or living organisms to develop products that can improve human lives. However, the term “biotech” is often used to denote more than merely biotechnology but represents a much broader concept – biomedical engineering, a broad discipline that apply interdisciplinary engineering principles to improve health and function of patients through developing diagnostic, therapeutic and rehabilitative products.
Highly cross-discipline in nature
Biomedical engineering is a highly interdisciplinary and heavily regulated industry with a long, complex development pipeline that extends well beyond laboratory research. Companies must navigate scientific challenges, clinical trials, patent protection, regulatory approvals, and sustained fundraising, often operating for years without revenue. Due to high risks and low success rates, professional investors remain cautious by conducting rigorous due diligence and limiting their investment to those areas where they possess technical expertise.
Legal professionals’ roles
Legal professionals are integral to biotech companies at many stages of their development, providing guidance on intellectual property protection, regulatory and approval matters, commercial transactions, corporate structuring, capital raising, IPOs, M&A, and dispute resolution. In light of the sector’s scientific complexity, stringent regulatory environment, lengthy development cycles, and significant investment risks, lawyers play a crucial role in mitigating legal exposure while facilitating strategic expansion and successful commercialisation.
Chapter 18A of the HKEX Main Board Listing Rules
Chapter 18A of the HKEX Main Board Listing Rules sets out alternative set of listing requirements for biotech companies, waiving the traditional minimum revenue requirement. Since the introduction of Chapter 18A in 2018, pre-revenue biotech companies have been able to list in Hong Kong, subject to the satisfaction of all the relevant rules or wavier of such requirements. According to the website of the HKEX, 80 companies have listed via Chapter 18A as of end-November 2025. The significance of Chapter 18A is to provide another method for the biotech companies to raise fund besides governmental grant, private equity sale and debt. Most importantly, the Chapter 18A listing route is friendly to pre-revenue biotech companies.
It is noted that “biotech” is defined broadly under Chapter 18A to allow a wide range of biomedical engineering enterprises to be listed in Hong Kong. It is set out in paragraphs 3.3 and 3.4 of the Guidance Letter (HKEX-GL92-18) and Chapter 18A that the HKEX will consider the listing application of a biotech company which sufficiently demonstrate it has developed a biotech product beyond concept stage and such biotech product must fall within one of the four categories: (1) Pharmaceutical (small molecule drugs), (2) Biologics, (3) Medical devices (including diagnostics) and (4) “Other Biotech Products” at the discretion of the HKEX. For more information, please refer to Chapter 18A of the HKEX Main Board Listing Rules and Guidance Letter (HKEX-GL92-18) and seek professional advice.
Medical Data Sharing
Data plays a critical role in the development of biotech industry. The success of biotech products largely depends on clinical trial results, which are basically large-scale statistical analysis on safety and efficacy. Early access to extensive data helps researchers better predict outcomes, allocate resources more effectively, and avoid costly late-stage failures.
In Hong Kong, initiatives such as the Hospital Authority’s Data Sharing Portal provide clinical data from over 40 public hospitals for academic research, subject to approval and strict privacy safeguards.The Hong Kong government also launched the Electronic Health Record Sharing System (eHealth) in 2016, a consent-based platform enabling secure sharing of encrypted patient records between authorized public and private healthcare providers. On 24 December 2025, the Health Bureau expanded the “Cross-boundary Health Record” function of the eHealth app to all approximately 6.3 million users, allowing eligible records to be shared with designated medical institutions in mainland China and enabling cross-border deposit and access of medical records for follow-up care.
The above demonstrates that the Hong Kong government is actively promoting the digitalisation of medical records, which could play a crucial role in advancing the R&D of biotech products. In Hong Kong, the collection, handling and use of personal data is subject to the Personal Data (Privacy) Ordinance (Cap. 486).
The Hong Kong Centre for the Medical Products Regulation (“CMPR”)
On 26 June 2025, the Department of Health announced that the CMPR will be established by the end of 2026 and that the Department of Health will implement primary evaluation for new drug registration in phrases starting from 2026, with full implementation by 2030. The vision of the CMPR is to become a "leading, internationally renowned medical products regulatory authority” which promotes innovation, and R&D of drugs and devices by optimising medical products regulation.
Primary evaluation will be implemented in phrases in the period from between 2026 to 2030 with the scope expanding each year:
The importance of the CMPR is to establish a local regulatory authority in Hong Kong to complete a comprehensive life-cycle of medical products – R&D, funding, regulatory approval, commercialisation across Hong Kong and the GBA.
Conclusion:
Biotech is a high-risk, capital-intensive industry, but successful biotech products can deliver significant health benefits, strong patent-protected profits, and wide-ranging economic gains through job creation across the value chain. Hong Kong's robust financial and legal systems, combined with its strategic location in the GBA, position it perfectly to become a world-class biotech hub. Hong Kong legal professionals will play increasingly important roles in supporting biotech companies throughout their entire lifecycle, and backing Hong Kong to become a leading hub for capital market, regulation and dispute resolution for the biotech industry.
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.
Introduction
In an attempt to modernize the position of trust law in Hong Kong, consultations regarding amendments to the Trustee Ordinance (Chapter 29 of the Laws of Hong Kong) (the “Ordinance”) were made in 2009 and 2012 respectively. Such amendments finally came into effect on 1 December 2013. Different amendments were made, including, among others, the enactment of Section 41X of the Ordinance in relation to the reservation of powers by the settlor in investment or asset management functions under the trust. This provision provides, among other things, the following:
“(1) A trust is not invalid only because of the person creating the trust (the settlor) reserving to the settlor any or all powers of investment or asset management functions under the trust.
(2) If a power or function referred to in subsection (1) has been reserved by the settlor, a trustee who acts in accordance with the exercise of the power or function is not in breach of the trust.”
Section 41X only deals with the reservation of power (“Reserve Power”) by the settlor in investment or asset management functions, and no other powers or persons are provided for in the provision. While the legislative intent has made it clear that the amendment is only to put it beyond doubt that a trust would not be invalidated because of the mere fact that the settlor has reserved the settlor’s power of investment or asset management functions, questions have arisen as to whether only the settlor is allowed to reserve them?
Delegation of Reserve Power by Settlor
Position as to Trustee:
For trustees, at common law, the fundamental rule was that a trustee could not delegate a power given to him if the power reposed a personal trust and confidence in him. However, the Ordinance now expressly provides for the power of appointment of agents and the delegation of functions by a trustee. Under Section 41B of the Ordinance, the trustee may delegate to another person as his agent certain functions other than the distribution of assets, the decision on payment out of income or capital, the appointment of trustees and the power of delegation. A trustee still cannot delegate the fundamental duties and functions which should be exercised at its discretion.
Position as to Settlor:
There is no equivalent provision for the Reserve Power of the settlor. Unlike the trustee, traditionally the settlor should have dropped out of the picture when the trust is properly constituted, there is nothing which must be reserved at the discretion and control of the settlor in order for the settlor to fulfil any duty under the law, and there is no power which the settlor has to delegate in general. Accordingly, the delegation of power by a settlor (as opposed to a trustee) is not a common feature and may not be necessary in a trust.
Unlike trustees who are in the position of trust and confidence, the settlor may not have such onerous duties. Where the Reserve Power of the settlors is merely a personal right, the settlors should be able to exercise such power at their own discretion for their own benefits. We submit a settlor may delegate the exercise of power to others as it will not affect any fulfilment of duties owed to the beneficiaries. Moreover, if Section 41B of the Ordinance has specifically allowed the trustees to authorize a person to exercise one or more of their delegable functions as their agent, the settlors, who do not owe any onerous duty to the beneficiaries in general, should be subject to a lesser degree of control and they should also be able to delegate their Reserve Power as they deem necessary or desirable.
Structuring the Reserve Power and Delegation Framework:
As part of the arrangement of a trust, the Reserve Power should be expressly specified in the trust deed, which is the basic document constituting the trust. The reservation of power may also be contained in some other documents and the trustee may give effect to these documents, such as a letter of wishes, but such documents may not be legally binding themselves. Alternatively, as can be seen from the case of Zhang Hong Li v DBS Bank (Hong Kong) Limited [2019] HKCU 4372, where the Reserve Power was made by appointing a settlor as the investment advisor to the private investment company of the trust and allowing her to make the decisions, the trust arrangement may also be designed in a way that a settlor will have effective control of investment and asset management functions.
If the settlor of a trust also desires to delegate the Reserve Power, such power of delegation should also be specified in a trust instrument in order to provide for clarity. If the trustees can delegate their power through other documents, such as a management agreement, we submit settlors should also be able to delegate the Reserve Power through other documents. Since the settlors are in general able to exercise Reserve Power for their own benefits, they will naturally be able to delegate the power without being subject to constraints.
Delegation of Reserve Power of the Settlor in case of Disability
Will an Enduring Power of Attorney (“EPOA”) help in case the settlor is mentally disabled:
An EPOA enables an individual (the donor) to appoint a trusted person (the attorney) to manage their property and financial affairs should they become mentally incapacitated, thereby providing a straightforward and cost-effective way of managing property and financial affairs. Unlike a conventional power of attorney, which becomes invalid if the donor loses mental capacity, an EPOA "survives" through that transition, provided it is executed according to prescribed statutory requirements while the donor is still of sound mind and is registered. The EPOA respects the donors’ autonomy by allowing them to choose who will act on their behalf, ensures a smooth transition in the management of their affairs, and helps avoid the distress, delay, and expense associated with court applications. However, the EPOA is limited to property and financial matters, and does not extend to decisions such as those about personal care or medical treatment.
Under Section 8(1) of the Enduring Powers of Attorney Ordinance (Chapter 501 of the Laws of Hong Kong) (“EPOAO”), the EPOA only empowers the attorney to deal with the property and financial affairs of the power donor, as opposed to the health and welfare and other matters, of the donor. Clear definitions of “property” and “financial affairs” are not provided in the EPOAO. The attorney may administer and apply the property of the donor to maintain the donor and other people for whom the donor might be expected to provide for or meet their needs. However, an EPOA which attempts to confer upon the attorney wider powers and authority than permitted in the EPOAO may be considered invalid.
Effects on Reserve Power:
Since once a trust is properly constituted, the settlor of the trust ceases to have any legal or beneficial interest in the trust property, unless the settlor is also one of the beneficiaries. In the situation where the settlor has reserved only investment and asset management functions and has no other interest in the trust property, arguably, matters in relation to trust assets are no longer the property and financial affairs of the settlor, as opposed to those of the trustee and the beneficiaries. Even when the Reserve Power is substantial such that the settlor may exercise effective control of the trust property, the benefits arising from such exercise of powers are only received by the beneficiaries of the trust. Accordingly, the investment and asset management functions are not part of the property and financial affairs of the settlor and the EPOA is unlikely to be able to save the situation.
However, the situation may be different when the settlor is also one of the beneficiaries. The investment and asset management functions may concern the property and financial interests of the settlor. In any event, for the purposes of certainty, the trust deed may be drafted in a way to cater for the situation when a settlor becomes mentally incapacitated and to provide directions on the subsequent exercise of the powers of investment or asset management functions.
Will
Reserve Power in respect of investment and asset management functions is not real or personal property per se. It is a mere power and function created by the trust instrument. Section 41X of the Ordinance also only addresses the reservation of such powers to the settlor and it does not mention his or her successors. If the trust instrument does not specifically allow the powers to survive upon the death of the settlor or be exercisable by the executors or assigns, it is likely the Reserve Power naturally dies with the settlor and cannot be bequeathed by a will.?
As a general proposition, a testator can by law dispose by will of all real and personal estate to which he or she is beneficially entitled for an interest not ceasing at his or her death and which if not so disposed of would have devolved upon his or her executor or administrator. Although certain choses in action, for example, rights of action for damages or other matters which devolve on the personal representative, copyrights and other intellectual property rights can be disposed of by will, a Reserve Power in respect of investment and asset management functions does not belong to the above class of personal rights and properties conferring an interest. It is unlikely that such Reserve Power can be bequeathed by a will.
Nevertheless, there is no harm to include in the settlor’s will a testamentary wish devolving the Reserve Power to a power holder and let the trustee decide on whether or not to follow that power holder’s directions. The trust instrument may also expressly allow a successor power holder to be designated by the settlor.
Conclusion
As Hong Kong positions itself as a leading hub for trusts and family offices, modernizing its trust law to accommodate Reserve Powers will enhance flexibility for settlors and other persons whom the settlors trust, align with international practice, and strengthen its competitiveness against offshore jurisdictions. By validating Reserve Powers such as investment directions, the appointment and removal of trustees or protectors, and the variation of trust terms, Hong Kong can provide settlors with greater confidence in structuring family wealth while ensuring that trusts remain legally robust. The Ordinance may also provide for clarity on the validity of the delegation of powers of the settlors and the limit of liability of the trustees. This can enhance certainty and confidence in the trust regime in Hong Kong. Moreover, this reform will further support the growth of family office services, attract high‑net‑worth individuals seeking sophisticated succession planning, and reinforce Hong Kong’s role as a premier jurisdiction for private wealth management.
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.
Sit, Fung, Kwong & Shum is a Hong Kong Special Administrative Region law firm and does not practice nor provide legal advice on the laws of other jurisdictions. References to the laws position of any other jurisdictions (including but not limited to the British Virgin Islands, the Cayman Islands, Jersey, Bermuda, and Singapore) in this material are provided for general reference and comparative purposes only and do not constitute any advice, opinion or representation on the law or practice in those jurisdictions.
IPRs Enforcement Actions in HK Trade Fairs
Hong Kong has earned a strong reputation for hosting international exhibitions, attracting renowned exhibitors and millions of visitors who aim to conclude business deals within a short exhibition period. These exhibitions serve as a vital platform for exhibitors to showcase their products, which often involve the development and exploitation of intellectual property rights ("IPRs"), including trade marks, copyrights, designs, and patents. Nonetheless, such events can also become a venue for infringers to display products that infringing the IPRs of others. Given that exhibition periods are typically short, lasting only a few days, it is crucial for IPRs owners to act swiftly. This article will discuss various enforcement actions that IPRs owners can take during the brief exhibition period to duly protect their IPRs while also seeking opportunities for further exploitation.
Generally, there are three local measures to enforce IPRs at trade fairs in Hong Kong, namely: (a) applying to the High Court of Hong Kong for interlocutory injunctions ("Court's Injunctions"); (b) filing complaints with the Hong Kong Customs and Excise Department ("HK Customs' Actions") and (c) filing complaints with the IPR offices provided by trade fair organizers ("organizers’ Actions").
Court's Injunctions
Parties to take enforcement actions:-
IPRs owners shall take an ex parte application to the Court for an interlocutory injunction with a returnable date for parties to attend before the Court. Upon the grant of an interim injunction, the IPRs owners shall serve the sealed copy of the injunction upon the alleged infringing parties.
Parties against whom enforcement actions are taken:-
Infringing exhibitors displaying any infringing products, including photos, and other related parties such as suppliers (if identified).
Will enforcement actions be taken against the organizers of the trade fairs?:-
For trade marks, it is possible under Section 18 of the Trade Marks Ordinance (Cap 559). For copyrights, it is possible under Section 31 of the Copyright Ordinance (Cap 528).
Types of IPRs enforced:-
All types of IPRs.
Documents and details required:-
Pleadings with an affidavit / affirmation of full and frank disclosure establishing that:- (a) there is a serious question to be tried on the merits of the case; (b) the balance of convenience lies in favor of granting an injunction; and (c) a cross-undertaking in damages (if appropriate). Documentary proofs of IPRs ownership and the infringing activities of the exhibitors are essential to be included in the said affidavit / affirmation.
Official fee required (apart from legal fees payable to instructing solicitors/counsel):-
Yes. There are official fees for filing the ex parte application for an interlocutory injunction and for obtaining sealed copies of the injunction granted.
General Procedure:-
An urgent ex parte application with the required documents shall be filed with the court during office hours for an immediate hearing date to grant the interlocutory injunction and a subsequent hearing date returnable by both parties. The urgent ex parte application can also be made outside court office hours by calling the duty judge to grant the interlocutory injunction and an immediate hearing date returnable by the parties. Upon the grant of the interlocutory injunction, the IPRs owners shall serve it upon the infringer, requesting them not to display the infringing products. Failing which, actions for contempt of court may be brought against the infringer. However, if the infringer has a valid defense, they shall attend court on the fixed returnable date to request further directions.
Who decides if there is a prima facie case of IPR infringement at Fair Trade?:-
Judge on the Intellectual Property List in the Court of First Instance of the High Court or other duty judge
Time frame for taking actions:-
The interlocutory injunction can be granted within half a day if all documents are in order.
Actions taken at the trade fairs:-
The IPRs owners shall serve the sealed copy of the injunction against the infringing exhibitors and the organizer of the trade fair.
Post-exhibition action:-
The IPRs owners may pursue the same actions at court for relief such as damages.
Advantages:-
It is an efficient measure to stop or deter infringing activities at the stance of trade fair. Damages may be awarded if parties pursue the same actions at court after the trade fair.
Limitations:-
It involves rather complicated court procedure requiring instructing solicitors and counsel and legal costs and disbursements are rather high.
HK Customs' Actions
Parties to take enforcement actions:-
IPRs owners shall file complaints with HK Customs. Upon acceptance of the complaints, HK Customs will conduct seizure of infringing products and commence prosecution against infringing exhibitors at the stance of trade fair.
Parties against whom enforcement actions are taken:-
Infringing exhibitors displaying any infringing products, including photos, and other related parties such as suppliers (if identified).
Will enforcement actions be taken against the organizers of the trade fairs?:-
For trade marks, it may not be possible under Section 9 of the Trade Descriptions Ordinance (Cap 362). For copyrights, it may not be possible under Section 118 of the Copyright Ordinance (Cap 528).
Types of IPRs:-
Trade marks, copyrights.
Documents and details required for recordation with HK Customs:-
The requested documents and details generally include:- (a) original authorization letter, copies of IPR certificates or latest trade mark records in Hong Kong; (b) statutory declaration under Section 121 of the Copyright Ordinance; (c) sample(s) of genuine and corresponding alleged goods; (d) copy of the invoice(s) of the sample(s) of alleged goods (if any); (e) appointment of examiner(s) by the trade mark owner(s) (Note: the appointed examiner(s) is/are required to conduct subsequent seizure identification and undertake to give evidence and testify in the courts of Hong Kong; an examiner is considered competent if they are capable of differentiating counterfeits by their knowledge, experience, and/or through access to the right holder’s records) and (f) record of preliminary examination.
Official fee required (apart from legal fees):-
No.
General Procedure:-
Preferably, the above documents for a prior complaint (not necessarily related to the infringing products to be displayed) shall be submitted to HK Customs. HK Customs will invite the examiner for the IPRs owners to conduct a competency test. Upon satisfaction with the documents filed and the examiner's competency, recordation is considered completed. Practically, it is not easy for overseas IPRs owners to arrange for their examiners to come to Hong Kong to assist with investigation and prosecution. When the alleged infringing products are displayed at trade fairs, the IPRs owners can immediately report to HK Customs for further action.
Who decides if there is a *prima facie* case of IPR infringement?:-
The officers in charge at Hong Kong Customs.
Time frame for taking actions:-
The recordation process is rather slow (especially the satisfaction of the competency test for examiners). Once it is completed, the process of search and seizure of infringing goods displayed at trade fairs upon receiving complaints can be conducted expediently.
Actions taken at the trade fairs:-
The officers of HK Customs will search and seize the infringing products at trade fairs for further investigation or prosecution.
Post-exhibition action:-
HK Customs may commence prosecution against the infringing exhibitors. Fine sanctions may be imposed upon the infringing exhibitors. However, no damages will be awarded to the IPRs owners. Upon conviction of the infringing exhibitors, the IPRs owners may request HK Customs to provide relevant documents and details to commence a separate civil action against the infringing exhibitors for relief such as damages.
Advantages:-
It is an efficient measure to stop or deter infringing activities at the trade fair upon completion of recordation with HK Customs. Criminal sanctions such as fines and imprisonment may be imposed by HK Customs
Limitations-
It is quite time-consuming to complete recordation, especially the appointment of examiners who must pass the competency test. Also, the burden of proof is high for prosecution (beyond reasonable doubt) and there is no award for damages to the owners of IPRs.
Fair Organizers’ Actions
Parties to take enforcement actions:-
IPR owners shall file complaints with the Organizers’ IPR Office. Upon acceptance of the complaints, the Organizers will issue a "Taking Down Notice" against the infringing exhibitors, requesting them to remove the infringing products, conduct seizure of infringing products and / or imposing other sanctions against infringing exhibitors pursuant to exhibition agreement entered into between the Organizer and the infringing exhibitors.
Parties against whom enforcement actions are taken:-
Infringing exhibitors.
Will enforcement actions be taken against the infringing organizers of the trade fairs?:-
No.
Types of IPRs:-
Trade marks, copyrights, registered designs, and patents granted (both short-term and standard), depending on the exhibition agreement between the organizer and the infringing exhibitors.
Documents and details required:-
The requested documents and details generally include:-(a) original authorization letter; (b) copies of IPR certificates or latest trade mark records in Hong Kong (Note: the IPR Office will conduct a latest IPR online check); (c)Statutory declaration under Section 121 of the Copyright Ordinance and (d)Particulars of infringing products displayed, such as exhibition stand numbers, photos, or samples.
Official fee required (apart from legal fees):-
It is solely depended on trade fair organizers’ discretion. The IPRs owners are advised to review the official website of the trade fairs regarding the onsite IPRs protection measures and procedure.
General Procedure:-
Upon identifying infringing products at the trade fair, the IPR owners shall file the required documents with the Organisers' IPR Office. After conducting a formalities check (including an updated IPR search), an officer of the Organisers' IPR Office will attend the exhibition stands where the infringing products are displayed to collect evidence, such as taking photos and collecting promotional materials. The officer will then prepare a report for the senior officers, who will decide whether to issue the "Taking Down Notice." Upon issuing the Taking Down Notice, the officer will serve the notice to the infringing exhibitors, requesting removal of the infringing products. If the infringing exhibitors refuse to remove the infringing products, the Organisers' IPR Office may impose sanctions, including refusing the infringer permission to join the same exhibition in the future pursuant to the exhibition agreement. If, however, the infringer can raise a valid defense (e.g., it has been granted a license to use the IPRs or has obtained the relevant IPRs, such as a short-term patent based on a utility model granted overseas), the Organizers’ IPR Office will take no further action and leave the parties to resolve the dispute via other means.
Who decides if there is a *prima facie* case of IPR infringement?:-
The senior officers in charge of the Organizers’ IPR Office of the trade fair organizers, who may be their in-house legal counsels or partners of outsourced HK solicitors' firms.
Time frame for taking actions:-
The actions can be taken within half a day to one day if a prima facie case of infringement is identified.
Actions taken at the trade fairs:-
The officer of the Organizers’ IPR Office will request the removal of infringing articles.
Post-exhibition action:-
The IPRs Owners may commence new actions at court to resolve the disputes and claim relief and damages against the infringing exhibitors.
Advantages:-
It is a simple and fast procedure to stop or deter infringing activities at the trade fair, whereby even laymen can file complaints without appointing legal representatives.
Limitations:-
The sanctions of removal of infringing articles at the trade fair may be lenient. Meanwhile, no damages will be awarded.
Conclusion
Upon reviewing the three ways of enforcing IPRs during the short exhibition period, it is highly recommended that IPRs owners develop a strategy to tackle infringement matters according to their budget and resources. On-site investigation prior to taking enforcement action is essential, particularly reviewing and collecting brochures showing the infringing products, taking photos of the displayed infringing items, obtaining the contact details of the infringer, and inquiring about the sources of the infringing products. On-site enforcement actions should be conducted as soon as possible once infringement is identified, in order to stop or deter any potential dealings or transactions between infringers and potential buyers. Post-exhibition enforcement action is also advisable to prevent infringers from continuing to infringe the exhibitors' IPRs in the future.
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.
Changes on SHRs
The Law Society of Hong Kong just announced that the Chief Justice has approved the new set of Solicitors’ Hourly Rates for Party and Party Taxation (“SHRs”), which will take effect from 1 April 2026 in that it will apply to all work done from that date onwards. This is the first adjustment since the existing SHRs adopted on 1 January 2018. For legal work done prior to 1 April 2026, the existing SHRs will continue to apply.
The new sets of SHRs with comparison to the existing SHRs are now tabulated for easy reference.
The second four‑yearly review was conducted by a Standing Committee appointed by the Chief Justice, which took Composite Consumer Price Index movements as the starting point and then considered factors such as acceptability and affordability, access to justice, effects on firms of different sizes, impact on legal aid and prevailing economic conditions. The adjustment ranges from 6.9% to 8.00%, representing a modest increase tracking accumulated inflation.
Implications
With higher SHRs, the potential exposures on costs for fully contested proceedings increase. Litigants should be advised on their potential cost exposures/recoverability with the updated SHRs, so that decisions to fight or settle are made on an informed basis.
Litigants should be aware of the distinction between solicitor-client rates and party-and-party SHRs. Party-and-party taxation is designed to ensure that the successful party is compensated for the necessary and proper costs of litigation, but not for all costs actually incurred, thereby keeping litigation costs reasonable and proportionate. Even under the updated SHRs, a successful litigant is unlikely to recover 100% of its actual costs from the opponent. Besides, litigants should note that in line with the position since 2018, the SHRs remain guidelines only – taxing masters are not bound by them and retain a wide discretion to adjust rates upwards or downwards on a case‑by‑case basis.
As legal practitioners, we will facilitate litigation clients to assess cost-proportionality and explore alternative dispute-resolution methods, such as mediation, which are more commercially attractive than full-brown litigation. To assist litigants in pursuit of justice under an affordable fee structure, we may consider offering phased budgets and options such as deploying solicitors of different seniority for complex or strategic works depending on their nature, strategic value and time to be spent in accordance with the economic value and complexity of the dispute.
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.
Background
Losing a beloved one is sorrowful, yet, after undergoing an emotional healing process, one may deal with the lost one’s assets and liabilities by way of application for the grant.
For application for grant of probate, usually, it will be the most straightforward case if a testator has duly executed a will which is most ideally prepared and witnessed by a solicitor to a law firm strictly in accordance with section 5(1), Wills Ordinance (“WO”) during his/her lifetime with sound mental and testamentary capacity, although it is still the prevailing practice of the Probate Registry that time will be taken to carefully review the applications.
Yet, even if a testator had left a will, the application for grant of probate can still be complicated if certain circumstances exist, and additional time for the Probate Registry’s processing and requisitions will be incurred. Here is a case with peculiar elements handled by SFKS, which is of referential value.
The Rule: How shall a Will be Legally Executed?
There is no stringent requirement as to where the testator executes his/her will as long as section 5(1), WO is complied with, in other words, it is not strictly required for a testator to execute a will in a law firm’s office. In fact, for a terminally ill testator who intends to executes his/her final will, most of the law firms’ solicitors (depending on circumstances, together with registered psychiatrists) offer to attend the hospital where the testator is hospitalized to execute the will.
Section 5(1), WO provides that:-
“(1) Subject to section 6, no will shall be valid unless— (Amended 21 of 2024 s. 78)
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction;
(b) it appears that the testator intended by his signature to give effect to the will;
(c) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and
(d) each witness either—
(i) attests and signs the will; or
(ii) acknowledges his signature,
in the presence of the testator (but not necessarily in the presence of any other witness),
but no form of attestation shall be necessary”
Case Study: Execution of a Will by a Hospitalized Testator during Pandemic
However, during the outbreak of Covid-19, stringent visiting restrictions were imposed by the Hospital Authority on public hospitals to combat the pandemic. Hence, it was difficult for even relatives to visit their loved one in the hospital, let alone solicitors or psychiatrists for the purpose of execution of a will, whereas nurses and doctors in public hospitals were generally reluctant to become witness and sign a will in view of the potential responsibilities that might arise therefrom.
Having no other alternatives, the patient concerned had to execute the will alone in the hospital, i.e. without two witnesses, and this was clearly in non- compliance with section 5(1), WO.
The patient passed away. The remaining challenge for the family members and the solicitors was to uphold the non-compliant homemade will and make the best attempt to prove the testamentary intentions therein. We chose the latter.
Alternative Route for Grant of Probate of a Non-Compliant Will
Upon lodging an application of grant of probate of such will, the Probate Registry will review such application with extra care and scrutiny, in particular, the Probate Registry will ask whether the applicant/executor intends to invoke section 5(2), WO, which provides that “A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the requirements under subsection (1), be deemed to be duly executed if, upon application, the court is satisfied that there can be no reasonable doubt that the document embodies the testamentary intentions of the deceased person” (emphasis added).
In short, the applicant/executor is required to show and satisfy the court by way of an affidavit/affirmation that the will signed by the testator alone embodied his/her testamentary intentions without any reasonable doubt. Proof of the embodiment of the testator’s “testamentary intentions” is rather fact-sensitive and may differ from case to case. While, generally speaking, in non-contentious probate application, an affidavit/affirmation shall be in the prescribed form, and any document to be used in conjunction with an affidavit/affirmation need not be exhibited to the affidavit/affirmation if the original document is filed in the Probate Registry (rule 65, Non-Contentious Probate Rules), the applicant/executor’s affidavit/affirmation showing the testator’s testamentary intention is not in any prescribed form and it also needs to account for the factual details leading to the execution of the subject will, all documents surrounding the execution of the subject shall be exhibited to explain that the subject will did embody the testator’s “testamentary intentions” and the reason why the testator was unable to duly execute the subject will as per section 5(1), WO.
In this case handled by SFKS, we have prepared on behalf of the applicant an affirmation together with exhibits showing that the subject Will was prepared by our firm and embodied the testamentary intentions of the testator at the material times, in particular given the peculiar circumstances at the time of pandemic, it was not feasible for the subject will to be executed by the testator pursuant to section 5(1), WO.
Nevertheless, as the Probate Registry was cautious about any applications for grant of probate pursuant to section 5(2), WO, in the said affirmation, the applicant was also required to show who would be entitled to share in the estate if the testator had died intestate, and also needed to file consent(s) of those other persons to the ex-parte application under section 5(2), WO.
Gladly, the Probate Registry has eventually been satisfied by the affirmation and the consent(s) prepared by us and allowed the applicant/executor’s application under section 5(2), WO with the probate of the subject will granted to the applicant/executor. This was after almost 1.5 years since the death of the testator, whose last wishes were finally fulfilled.
Conclusion
To conclude, application of grant of probate of a will is supposedly simple and straightforward. However, due to certain circumstances which are out of human control, such application can still be complex. In any event, if a will is prepared by a law firm, coupled with certain peculiar circumstances that the applicant/executor can properly explain, even if it is subsequently not executed in compliance with section 5(1), WO, the applicant still has grounds to satisfy the court beyond reasonable doubt that the subject will embodies the testamentary intentions of the testator and have the grant of probate of the subject will to be granted to him under section 5(2), WO.
The following are key takeaways:-
First, it is always better to plan for the making of wills in advance, and not to wait until being hospitalized where you run the risks of making a non-compliant will or making no will.
Second, although a will can be prepared and executed without involving solicitors, it is highly advisable that wherever possible, solicitors should be engaged for drafting a will or document(s) embodying testamentary intentions and ensuring legal compliance, eliminating all risks of the preparation of a homemade will.
Third, family members who found an apparently non-compliant homemade will of a deceased should not just give up, but they should consult solicitors to consider the alternate route under section 5(2), WO though it would take time.
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.
1. Introduction
As Hong Kong’s workforce returns from the Lunar New Year break, it is worth noting a key change to Hong Kong’s employment regime that came into force on 18 January 2026. The Employment Ordinance (Cap. 57) (EO) has adopted a new 417/468 continuous contract test (417/468 Rule), which makes it easier for more part-time and irregular-hours workers to qualify for EO benefits.
In substance, “continuous contract” remains the threshold for key statutory entitlements such as sickness allowance, maternity and paternity leave, severance payments, and statutory holiday pay. What has changed is the hours test used to establish that status.
From 18 January 2026, a contract is treated as “continuous” if an employee has been employed by the same employer for four or more consecutive weeks and each of those weeks meets the prescribed hours test (Qualifying Week). A week is a Qualifying Week if the employee either:
(i) works at least 17 hours in that week; or
(ii) works at least 68 hours in total across that week and the immediately preceding three weeks (a rolling four-week total), provided the employment spans the entire period (Second Limb).
It should be noted that the amendment is not retrospective. For an employment period before 18 January 2026, the old requirement continues to apply. Other EO qualifying periods (for example, three months for statutory holiday pay and 12 months for paid annual leave) are not altered by this amendment.
2. Work patterns matter more under 417/468 Rule
Under the old 418 rule, the analysis was linear: four consecutive weeks, each requiring at least 18 hours of work. If the hours in any week fell below 18, continuity was broken and the clock reset.
The updated test makes the distribution of hours across weeks more significant because it looks at a rolling four-week window, and a shorter week will not necessarily break continuity if the preceding weeks bring the total up to the statutory threshold.
The Second Limb of the 417/468 Rule does not apply during the first three weeks of employment, as there is no preceding three-week period of employment for any of those weeks, and such a period is required for any of them to qualify as a Qualifying Week. This means that during the first three weeks of a new employment, the employee must work for at least 17 hours each week to establish a continuous contract.
To illustrate:
Example 1
Week 1: 20 hours
Week 2: 18 hours
Week 3: 17 hours
Week 4: 13 hours
Total (Weeks 1–4): 68 hours
Continuous contract
In example 1, only Week 4 is under 17 hours, but the four-week total reaches 68. Under the 417/468 Rule, each week is a Qualifying Week and therefore the employee is under a continuous contract. Under the old 418 Rule, Week 4 would have broken continuity.
Example 2
Week 1: 17 hours
Week 2: 17 hours
Week 3: 17 hours
Week 4: 13 hours
Total (Weeks 1–4): 64 hours
No continuous contract
By way of contrast, in example 2, Week 4 is under 17 hours and the four-week total is below 68. Under the 417/468 Rule, Week 4 is not a Qualifying Week and therefore the employee is not under a continuous contract.
Example 3
Week 1: 13 hours
Week 2: 19 hours
Week 3: 17 hours
Week 4: 16 hours
Week 5: 16 hours
Total (Weeks 2–5): 68 hours
No continuous contract
In example 3, both Weeks 4 and 5 fall below 17 hours. Although the four-week total for Weeks 2 to 5 reaches 68, the Second Limb of the 417/468 Rule operates only to make Week 5 (but not each week within that four-week period) a Qualifying Week. Since the four-week total for Weeks 1 to 4 is under 68, Week 4 is not a Qualifying Week and continuity is broken.
Example 4 (new employment)
Week 1: 35 hours
Week 2: 17 hours
Week 3: 16 hours
Week 4: 16 hours
Total (Weeks 1–4): 84 hours
No continuous contract
In example 4, both Weeks 3 and 4 are under 17 hours. Week 4 is a Qualifying Week as the four-week total reaches 68. However, the Second Limb of the 417/468 Rule does not apply to the first 3 weeks of new employment. Consequently, even though the total working hours for the first 3 weeks already reach 68, Week 3 cannot be “saved” by this rolling total provision. Therefore, Week 3 is not a Qualifying Week and has broken continuity.
Nothing in the EO prohibits flexible rostering. Adjusting hours to reflect genuine operational needs remains permissible. From a compliance and administration perspective, the key is that timekeeping and rostering records should be sufficiently clear to support accurate calculation of hours under the 417/468 Rule so that continuous contract status can be assessed consistently.
3. Legal context
Although the 417/468 Rule is new, it operates within existing EO framework and the established principles in case law on continuous contracts and work arrangements. The following points remain important under the new rule.
Statutory onus
Once the hours requirement in the First Schedule of the EO is satisfied, the contract is treated as continuous for EO purposes and the statutory benefits follow. S.3(2) of the EO expressly provides that, in any dispute as to whether a contract is a “continuous contract”, the onus of proving that it is not continuous rests on the employer. This makes clear and contemporaneous records of hours worked especially important, particularly where weekly hours and rolling four-week totals may need to be verified.
Labels are not determinative
Consistent with the statutory framework, the courts give limited weight to labels such as “casual”, “contract worker” or “self-employed”, and instead focus on substance of the relationship, including mutual obligations, control, integration, economic dependence, regularity of work and whether the individual is in business on his or her own account (see Poon Chau Nam v Yim Siu Cheung (2005) and Wong Man Kwan and Others v Chun Shing Holdings Ltd (2003))
Gaps and fixed term arrangements
Where engagement is structured through successive fixed-term contracts, short gaps in between fixed term contracts can interrupt continuity, even if the work appears continuous (see Wong Man Sum v Wonderland Sea Food Restaurant (2007)).
Taken together, possible disputes under the new 417/468 Rule remain familiar:
4. Practical points for employers
To maintain compliance under the new test, employers are recommended to regularly:
(a) Review standard employment contracts, staff handbooks and HR policies to ensure that references to “continuous contract” and qualifying hours reflect the 417/468 thresholds.
(b) Identify part-time, casual and irregular-hours roles, particularly those averaging around 15–19 hours per week or 60–72 hours per four-week period, and recognize that many of these workers may now fall within continuous contract protection. This is particularly relevant in sectors such as retail, construction and creative industries, where irregular hours are common.
(c) Ensure timekeeping practices and payroll records are maintained in a way that reliably reflect accurate calculation of hours worked and reduce reliance on informal or ad hoc tracking outside the timekeeping system.
(d) Brief line managers responsible for scheduling rosters to be informed about the new 417/468 Rule and ensure they understand schedules should be driven by operational needs.
5. Conclusion
The 417/468 Rule does not rewrite the law on continuous contracts but changes who is more likely to qualify and recognizes fluctuating patterns over a rolling four-week window.
For employers, the priority is consistency between operational needs, work patterns and documentation. For employees, the new test makes it easier for variable schedules to still amount to continuous employment. As case law develops under the new test, the focus is likely to be less on the formula itself and more on how the work relationship operate in practice.
This article is co-authored by our Partner Joseph Wong and our Trainee Solicitor Christy Hui.
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.
Revisiting Service of Notice of Appeal in Hong Kong: From FNG v BCJ to RHC Order 65
In their article “Can Notices of Appeal be Served on Solicitors Acting in the Court Below?” published in the August 2021 issue of Hong Kong Lawyer¸ Henry Cheng and Jasper Wong of Denis Chang’s Chambers (“the learned authors”) have helpfully summarized the reasoning and implications of the decision of Court of Appeal in FNG v BCJ [2021] HKCA 160 which seems to have the effect that the solicitors on record for the respondent in the court below are not automatically be regarded as solicitors for the respondent in the appeal and hence an appellant would have to effect service of the Notice of Appeal on a respondent by another means if that respondent withholds instructions to his solicitors in the court below to accept service of the Notice of Appeal on his behalf.
In this article, we try to explore and analyze further whether it is indeed correct to say that service of a Notice of Appeal on the solicitors on record for the respondent in the court below could not be valid and good service.
Effect of RHC Order 65 Rule 5 overlooked?
It appears that from the judgment of FNG v BCJ [2021] HKCA 160 both the parties and the Court of Appeal have focused their consideration and analysis on the interpretation of Rules of the High Court (RHC) Order 67 Rule 1 but no mention was made in respect of RHC Order 65 Rule 5.
As pointed out by the learned authors, the provisions of RHC Order 65 Rule 5 regarding ordinary service applied to service of Notice of Appeal and the Court of Appeal’s decision in FNG v BCJ does not appear to have altered this position.
RHC Order 65 Rule 5(1)(a) stipulates that ordinary service “may be effected by leaving the document at the proper address of the person to be served”. RHC Order 65 Rule 5(2)(a) further states that “… the proper address of any person on whom a document is to be served in accordance with this rule shall be the address for service of that person, but if at the time when service is effected that person has no address for service his proper address for the purposes aforesaid shall be in any case, the business address of the solicitor (if any) who is acting for him in the proceedings in connection with which service of the document in question is to be effected.” (emphasis added)
Interpretation of “In Connection with”
It is interesting to note that the wordings of RHC Order 65 Rule 5(2)(a) treats that the business address of a solicitor acting for a party in the proceedings “in connection with” with the documents to be served is valid address for the purpose of ordinary address.
While the rule does not explain the meaning of “in connection with” and there appears to be no local authority expressly ruling on the phrase of this rule, the phrase “in connection with” has been interpreted with a wide meaning in Hong Kong legal practice in a number of cases such as paragraphs 35-36 in Xu Yi Hong (許毅紅) v Chen Ming Han (陳明翰) & Ors [2006] 4 HKC 633 and paragraphs 23-25 in Yingde Gases Investment Ltd (盈德氣體投資有限公司) v Shihlien China Holdings Co Ltd (實聯中國控股有限公司) [2014] HKCU 138.
The above authorities suggest that the phrase “in connection with” is inclusive of all matters that are not entirely unrelated to the underlying transaction or legal proceedings. Hence, the application of this phrase extends to a wide range of scenarios that maintain a factual or legal connection with the main proceedings or the transaction at hand.
Applying the above as well as the natural and ordinary meaning of the words and common sense, a Notice of Appeal is inevitably a document “in connection with” the proceedings of the court below. This is especially true regarding service of the Notice of Appeal when no new case number is yet to be assigned to the Notice of Appeal at the time of its service and the case number of the proceedings below will be the key reference is showing the connection of the matter to be appealed against.
Conclusion
Based on the above logic, it seems at least strongly arguable that Notices of Appeal can therefore be lawfully and effectively served on the solicitors acting for the respondent as long as the solicitors remain on the record for the respondent in the proceedings below.
With respect, the Court of Appeal seemed to understand that the practice of serving Notices of Appeal on the solicitors acting for the other party in the court below as a mere “common practice” but did not further consider whether such practice may actually have legal effect under RHC Order 65 Rule 5. The Court of Appeal also appeared to put much of the focus and emphasis on the fact that the same solicitors firm does not necessarily have instructions to act in the appeal and accept service. However, the absence of a solicitor’s authority to act does not necessarily render any service on the solicitors invalid. A common example is that service on a solicitor who has cease to act for a party remains good service unless and until the solicitors has withdrawn from the record by complying with the requirements under RHC Order 67 Rule 6(1).
In any case, it is clear that more time, costs, delay and uncertainties may incur and arise if Notices of Appeal cannot be conveniently served on the solicitors acting for the respondent in the proceedings. We share the learned authors’ concern that further guidance or clarification (be it by way of case authority, practice direction or guidance note) from the Court will be invaluable and hope that they will be forthcoming.
This article is co-authored by our Partner Sidney Ho and our Trainee Solicitor Viola Lee.
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.
In the landscape of Hong Kong matrimonial law, most marriages end through divorce. However, a recent judgment in the District Court, DC v. AS [2026] HKFC 7 (FCMC 807/2022), provides a rare look into the law of nullity (annulment). While the case centred on the “wilful refusal to consummate” a marriage, the learned Judge’s remarks offer a stern warning to both litigants and solicitors regarding procedural discipline, the purpose of pleadings, and the responsible use of public funds.
The Case: A Short-Lived Union
The Petitioner (the Husband) sought to annul his 14-day marriage on the grounds of non-consummation. Despite a five-year pre-marital relationship, the Husband claimed that post-wedding intoxication and a subsequent breakdown in the relationship prevented the marriage from ever being legally consummated. The Wife argued that sexual intercourse had occurred on the morning after the wedding, but the Court ultimately found her testimony lacked the necessary particulars and credibility. However, the Husband’s legal victory was overshadowed by the Court’s scathing critique of how the case was conducted by both legal teams.
The Legal Ground: Wilful Refusal to Consummate
Under Section 20(2)(b) of the Matrimonial Causes Ordinance (Cap. 179), a marriage is voidable if it has not been consummated due to the wilful refusal of the respondent. To succeed in such a petition, the court must be satisfied of three elements: -
The case hinged on a factual dispute regarding the morning of 7 March 2021, i.e. the day after the wedding. The Wife asserted that they had consummated the marriage that morning, but she provided these details only during oral testimony at trial. The Husband maintained that no sexual intercourse took place because he was suffering from a severe hangover, including stomach cramps and exhaustion from the wedding festivities.
His Honour Judge I. Wong found in favour of the Husband. The learned Judge noted that the Wife’s pleadings were “fatally brief” and lacked particulars. Furthermore, the Husband’s version – that he was physically unfit for intimacy due his condition – was deemed more credible. The Court also noted that pre-marital sex, which the parties did not dispute, does not legally constitute “consummation”.
A significant aspect of this case was the proposal to consummate. The Court held that a husband does not necessarily need to make a formal, verbal request for sex. By providing a matrimonial home and begging the Wife not to leave during their arguments, the Husband had made an implied proposal to live as a married couple, which inherently includes the intention to consummate.
Conversely, the Wife’s decision to move out after only 14-days marriage and her refusal to return was classified as a “wilful refusal” without just excuse. The Court noted that even in oral testimony, the Wife admitted that once she moved out, she had no intention of returning.
Pleadings: A Map, Not a Memoir
A critical takeaway from this judgment is the Court’s reminder that pleadings are intended to define the issues, not to blur them. His Honour Judge I. Wong described the parties’ pleadings as being in “hopeless shape” and “out of focus”. Instead of stating material facts, the legal representatives pleaded unnecessary evidence, lengthy submissions, and irrelevant history.
The Court emphasised the following expectations:
The judgment highlights that a solicitor’s role extends beyond acting as a mouthpiece for the client; they must also assist the court and act as professional gatekeepers. Solicitors have an essential duty to provide clear advice on: -
Legal Aid and the Responsibility to Public Funds
The Judge raised a significant point regarding Legal Aid. The Respondent contested the nullity petition using public funds. However, since the outcome would not change her financial rights, the learned Judge questioned the merit of the defense. The Court directed the judgment to the Director of Legal Aid, noting that solicitors assigned by the Legal Aid Department have a continuing duty to evaluate the merits of a case as it progresses to ensure public funds are used responsibly.
Conclusion: The Need for Litigation Discipline
This judgment serves as a reminder that family law proceedings require more than just a factual grievance; they require professional discipline. For litigants, the lesson is clear: the court expects a focused presentation of the legal issues. For solicitors, the duty is to manage client expectations, provide realistic advice on costs, and ensure that the court’s time – and public funds – are used with respect for procedural rules.
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.
As a Tai Po local who was born, raised, and lived for three decades in Wang Fuk Court, I share the same profound grief felt by all affected residents. This cherished land has nurtured the memories of generations of Wang Fuk Court residents, and has been the backbone supporting me from student days to professional practice. Now, there is no hesitation but to use legal knowledge and service to give back to this community.
Two months after the disaster, while the immediate short-term situation has somewhat stabilized, residents are acutely aware that public attention will inevitably fade. The medium- and long-term challenges ahead remain daunting. Therefore, this article consolidates the short-, medium-, and long-term legal needs of the residents for various stakeholders, ensuring they will not walk this legal path alone. Additionally, this article summarizes the legal concerns and developments observed over the past two months, using history as a guide.
Public Concern After the Disaster: The Legal Community's Rapid Response
November 26, 2025 remains fresh in memory when friends and family were frantic upon hearing news of the fire. As part of those affected, aside from briefly checking in, we faced too many unknowns to process. Neighbors were scattered, each searching for new temporary housing, yet grief remained unhealed, and problems unresolved.
After settling somewhat, residents began considering various legal practicalities, thanks in large part to the legal community's swift response. On November 27, the Law Society of Hong Kong established a legal consultation hotline and recruited volunteers. Starting December 4, the Law Society coordinated lawyers, including myself, to attend transitional housing sites to provide on-site legal consultations for temporarily relocated residents.
On the public front, the police arrested over 10 individuals on suspicion of manslaughter. The ICAC made arrests related to corruption involving construction works and detained both the current and former chairpersons of the Owners' Incorporation. On December 12, the Government established an independent committee to review the incident and prevent future disasters.
On January 6, the Lands Tribunal heard the government's application to invoke Section 31 of the Building Management Ordinance (Chapter 344 of the Laws of Hong Kong) to dissolve the Owners’ Committee of Wang Fuk Court and appoint Hop On Management Company Limited as the manager.
Regarding the legal system, the Hong Kong Bar Association took the lead by forming a task force to study relevant ordinances. On January 15, the Home and Youth Affairs Bureau proposed amendments to the Building Management Ordinance, including raising the threshold for physical attendance and voting on major maintenance projects and large procurement decisions, capping the number of proxy documents, and improving declarations of interest. The public consensus is clear: even one disaster is one too many, and the system must be optimized to eliminate hidden risks.
Integrating Short-, Medium-, and Long-Term Legal Needs
It is understandable that public attention has shifted from disaster relief to systemic improvements. However, the legal needs of the affected residents themselves are ongoing and complex.
In legal consultations, victims questioned about insurance claims, property ownership, inheritance matters, civil compensation, tenancy issues, and building management. These issues are interconnected and fraught with significant uncertainty. What lawyers can offer, beyond listening, offering condolences, and providing comfort, is to work together with the victims to anticipate potential future needs and provide corresponding legal principles and guidance applicable.
Short-Term Legal Needs
Identification of Deceased Individuals: One of the most heart-wrenching scenes following the disaster was the inability of affected residents to locate and identify the remains of their loved ones, even after learning of their passing. This prevented the Deaths Registries from issuing death certificates directly, yet death certificates are indispensable for general estate administration. Inquiries have been received from families needing to apply to the Coroner’s Court for a “Certificate of the Fact of Death” under Section 41 of the Coroners Ordinance (Chapter 504 of the Laws of Hong Kong) to support their application for estate administration. If forensic examination cannot be completed, a person with a proper interest must provide reasons to support the issuance of the certificate. On January 15, the Secretary for Security announced that the death toll had reached 168, as all bodies had finally been identified.
Immediate Insurance Claims: In response to the urgent needs of the affected residents, many insurance companies have expedited the approval process for home insurance or fire insurance claims. Some have even simplified the claim steps and disbursed funds directly. Approved disbursements typically require the policyholder to sign documents confirming the “full and final” settlement of claims against the insurance company regarding this incident. For caution, policyholders should review their policy coverage and consult their insurance brokers to confirm that there are no remaining claims under the policy (or to voluntarily waive them) before making an informed decision.
Tenancy Arrangements: Many affected residents were tenants. Some others were landlords renting out their units in Wang Fuk Court. They wondered whether their tenancy obligations are suspended or directly terminated, and how the tenancy deposits should be handled. Some leases include force majeure clauses specifying applicable situations and subsequent actions. A possible legal perspective suggests that, as affected residents cannot return to their units for the short to medium term, the principle of frustration of contract applies, and the lease should be directly terminated. However, the situation may differ for residents of unaffected buildings, such as those in Wang Chi House, and should be determined based on individual leases and actual circumstances.
Medium-Term Legal Needs
Estate Administration: On December 10, the Judiciary announced that it would prioritize estate administration and coroner’s proceedings related to Wang Fuk Court. However, given the overload of cases at the Probate Registry, it is anticipated that the approval process will still take months. Estate-related laws are particularly complex, and family members may not be familiar with the application documents and legal foundations. Furthermore, exercising its duty to protect estates, the Probate Registry may need to issue requisitions, requiring applicants to spend additional time in researching and responding. Once the Grant of Probate or Letters of Administration for a property-owning deceased is issued, rights over the property can be exercised in the capacity of the personal representatives, whereas Assents are required to vest the property to the beneficiaries.
Mortgage Arrangements: On November 29, the Hong Kong Housing Authority announced the relaxation of regulations regarding mortgage repayment periods and amounts under its Mortgage Loan Guarantee Deed. Subsequently, major mortgage banks offered a six-month suspension of repayments for mortgages and personal loans, along with a waiver of penalty interest. This means that by late May 2026, affected residents may need to face new mortgage arrangements. If issues such as enforcement actions, receivership, or mortgage modifications arise, residents will not only need to communicate directly with their banks but will also likely need to deal with legal documents.
Building Management: Residents have been discussing whether owners lose their “right to complain” after the Owners' Committee is taken over. In reality, the primary channels for owners to voice concerns have always been through voting at owners’ meetings and gathering a required number of signatures to demand meetings to be convened. These rights are not contingent upon the existence of the Management Committee. However, as the dissolution of a Management Committee is unprecedented in Hong Kong, such misunderstandings are quite understandable. These discussions highlight the importance of clarifying the legal relationship and division of responsibilities between the residents and Hop On Management Company Limited, the appointed manager.
Long-Term Legal Needs
Property Ownership: On January 10, the government distributed questionnaires to residents to gather opinions on long-term resettlement. From the residents’ perspective, this marks a turning point: transitioning from short-term post-disaster resettlement to medium- and long-term adaptation and final decision-making. Unless the original buildings are preserved, all resettlement options will inevitably involve transfers of property ownership. This may include the government purchasing ownership rights with cash, or exchanging unit ownership through a “flat-for-flat” arrangement. Conveyancing is one of the primary legal services required, and given that property values amount to millions, it is advisable to seek professional assistance to handle the process carefully.
Enduring Powers of Attorney (EPOA) for Elderly Residents: Many Wang Fuk Court property owners are in their seventies. The immense stress following the disaster has left many elderly residents in a significantly diminished state, raising concerns. However, whether signing documents with the government for property transfers, applying for public housing (e.g., Home Ownership Scheme or Green Form Subsidised Home Ownership Scheme), or voting at owners' meetings, the prerequisite is that the elderly individuals possess the mental capacity to act. Elderly residents may consider preparing an enduring power of attorney in advance, executed in the presence of a solicitor and a doctor. This would ensure that, in the event they lose mental capacity (e.g., due to dementia or cognitive decline), an authorized and trustworthy relative or person can manage their financial affairs, prioritize the use of their assets for their own benefit, and handle property ownership documents related to Wang Fuk Court.
Civil Claims: Some residents have inquired about pursuing civil claims. The limitation period for personal injury or death claims is three years from the date of the incident or the discovery of the injury or death, meaning the deadline would be November 2028. Regarding potential defendants, residents should monitor related criminal cases. A criminal conviction generally serves as conclusive evidence of civil liability, though establishing the causal link between the defendant’s actions and the residents’ losses remains necessary. However, civil litigation can be time-consuming, the calculation of compensation is complex and subject to variables, the defendant’s ability to pay compensation and legal costs may be uncertain, and insurance companies may be unwilling to initiate litigation on behalf of residents. All these factors must be weighed when residents decide whether to pursue legal actions.
Reflections on the Law in the Aftermath of the Disaster
The focus of this article is that the needs of disaster victims are not transient but ongoing. The trajectory of legal services should, therefore, evolve from handling immediate necessities into a long-term, reliable “companionship”.
The law has traditionally been perceived as noble and stable, yet it is also often viewed as relatively detached and rigid. In the aftermath of the Wang Fuk Court fire, the legal community broke away from this conventional image by promptly offering legal advice to victims on-site, demonstrating flexibility in their access.
Another traditional impression of the legal profession is its compartmentalization, with outsiders categorizing lawyers based on their specific fields of law. However, the legal concerns of disaster victims are often interconnected, requiring lawyers to possess the capability to provide advice across multiple legal domains simultaneously.
Like any client, disaster victims are not legal experts. Articulating their own needs clearly and systematically within a limited timeframe is undoubtedly challenging. For victims and other clients, it is crucial that lawyers can quickly sort through facts and applicable laws, then systematically summarize and present them.
Afterword
I still remember the day I accompanied my family to transitional housing to sign occupancy documents. While immensely grateful for the swift and generous support from all sectors, I was also at a loss for words that my family had, one day, become recipients of such services. Till now, like other affected residents, I still yearn to return to our old home every day, hoping to retrieve our precious, dust-covered photographs, and then properly express gratitude and bid farewell.
The beauty of Wang Fuk Court lies not only in its convenient location and pleasant scenery. For its residents, this home is proof of life’s simple, peaceful years: cycling west to Tai Po Market, south to Tolo Harbour, or north to Tai Mei Tuk in leisure time. Housewives tend their plots in designated gardens, sharing the harvest, tomatoes, water spinach, white radishes, all bearing the heartfelt flavor of homegrown produce. The outdoor playground in Wang Fuk Court carries memories of the past, and has even been filmed.
The tragic fire changed everything. Our homes were gone. Life looks really fragile. Yet, let’s not forget the memories and sense of purpose in mind, something we can forever hold onto.
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.
