HONG KONG

Since 2000 Electronic Signature’s have been recognized by law in Hong Kong with the passing of Hong Kong’s Electronic Transactions Ordinance Act of 2000. This allows for multiple forms of electronic signatures to be used in the private sector as long as there are digital records in place.  (Read below for insight)

eSignature Legality Summary

Under Hong Kong law, a written signature is not necessarily required for a valid contract – contracts are generally valid if legally competent parties reach an agreement, whether they agree verbally, electronically or in a physical paper document. The Electronic Transaction Ordinance (ETO) specifically confirms that contracts cannot be denied enforceability merely because they are concluded electronically. To prove a valid contract, parties sometimes have to present evidence in court. Leading digital transaction management solutions can provide electronic records that are admissible in evidence under Hong Kong law, to support the existence, authenticity and valid acceptance of a contract.

Use Cases for Standard Electronic Signature (SES)

Use cases where an SES is typically appropriate include:

  • HR documents, such as employment contracts, non-disclosure agreements, employee invention agreements, privacy notices, benefits paperwork and other new employee on-boarding processes
  • commercial agreements between corporate entities, including non-disclosure agreements, purchase orders, order acknowledgements, invoices, other procurement documents, sales agreements, distribution agreements, service agreements
  • consumer agreements, including new retail account opening documents, sales terms, services terms, software licenses, purchase orders, order confirmations, invoices, shipment documentation, user manuals, policies, but excluding consumer loan agreements
  • corporate secretarial filings
  • licenses for intellectual property, including patent, copyright and trademark as well as software licenses
  • transfers of intellectual property (e.g., patent and copyright assignments)

Use Cases for Other Types of Electronic Signature (e.g. Digital Signature, AES[1], QES[2])

Use cases where an electronic signature other than SES may be required include:

  • Digital Signature (AES – certified by registered certification authority) – transactions with Hong Kong Governmental entities

Use Cases That Are Not Typically Appropriate for Electronic Signatures or Digital Transaction Management

Use cases that are specifically barred from digital or electronic processes or that include explicit requirements, such as handwritten (e.g. wet ink) signatures or formal notarial process that are not usually compatible with electronic signatures or digital transaction management.

  • Handwritten – employee termination notices
  • Handwritten – the creation, execution, variation, revocation, revival or rectification of a will, codicil or any other testamentary document (Schedule 1 ETO)
  • Handwritten – the creation, execution, variation or revocation of a trust (other than resulting, implied or constructive trusts) (Schedule 1 ETO)
  • Handwritten – the creation, execution, variation or revocation of a power of attorney (Schedule 1 ETO)
  • Handwritten – the making or execution of any instrument, including commercial agreements, which is required to be stamped or endorsed under the Stamp Duty Ordinance (Cap 117) other than a contract note to which an agreement under section 5A of that Ordinance relates (Schedule 1 ETO)
  • Handwritten – government conditions of grant and Government leases (Schedule 1 ETO)
  • Handwritten – any deed, conveyance or other document or instrument in writing, judgments, and lis pendens referred to in the Land Registration Ordinance (Cap 128) by which any parcels of ground tenements or premises in Hong Kong may be affected (Schedule 1 ETO)
  • Handwritten – any assignment, mortgage or legal charge within the meaning of the Conveyancing and Property Ordinance (Cap 219) or any other contract relating to or effecting the disposition of immovable property or an interest in immovable property (Schedule 1 ETO)
  • Handwritten – a document effecting a floating charge referred to in section 2A of the Land Registration Ordinance (Cap 128) (Schedule 1 ETO)
  • Handwritten – oaths and affidavits (Schedule 1 ETO)
  • Handwritten – statutory declarations (Schedule 1 ETO)
  • Judgments or orders of court (Schedule 1 ETO)
  • A warrant issued by a court or a magistrate (Schedule 1 ETO)
  • Negotiable instruments (Schedule 1 ETO)

[1] An AES is an “advanced electronic signature”, a type of electronic signature that meets the following requirements: (a) it is uniquely linked to the signatory; (b) it is capable of identifying the signatory; (c) it is created using means that are under the signatory’s sole control; and (d) it is linked to other electronic data in such a way that any alteration to the said data can be detected.

[2] A QES is a specific digital signature implementation that has met the particular specifications of a government, including using a secure signature creation device, and been certified as ‘qualified’ by either that government or a party contracted by that government.

Local Technology Standards

In transactions not involving Government entities and not falling within the excepted classes of documents under ETO Schedule 1, a signature requirement under the law can be met by any form of “electronic signature” so long as it is reliable, appropriate and agreed by the recipient of the signature.

Currently, there are only two recognized digital certification authorities able to issue certificates necessary for a “digital signature” for transactions involving Government entities–the Postmaster General of the Hong Kong Government and Digi-Sign Certification Services Limited.

 

DISCLAIMER: The information provided on this website is for your convenience and for general information purposes only. Nothing on this website is intended to serve as legal advice. Each country has the ability to change laws that oversea and govern electronic signature. these changes may be rapid, so DocuMega cannot guarantee that the information provided on this website in regards to laws in various countries is current or correct. If you as a Visitor to this website should need future guidance on these laws then you should consult with a local attorney for guidance.