Are electronic signatures legal in Hong Kong?
Hong Kong’s legal model is a tiered one. This means that Qualified Electronic Signatures are seen as a legal type of e-signature. This doesn’t mean that a non-QES e-Signature can’t be submitted in court, but it will need extra evidence to support it.
Hong Kong operates a Common Law system, which is based on:
- Judicial decisions are seen as binding
- Laws aren’t always of a written structure
- Few provisions are hinted at into the contract, by law
- Generally, everything is permitted that isn’t expressly prohibited by law
Few provisions are implied into a contract under the common law system – so it’s important to cover all the terms governing the relationship between the parties to a contract in the contract itself. This usually means that contracts are typically longer than one in a civil law country.
The Electronic Transaction Ordinance (ETO), (established in 2000) in Hong Kong law highlights that a handwritten signature isn’t always needed for a contract to be considered credible and that contracts can’t be refused for simply being electronic. They’ll usually be seen as such as long as legally able individuals have reached an agreement (this can be by agreeing verbally, electronically or by physically signing something).
The ETO enumerates specific categories for which documents cannot be executed electronically:
- wills, codicils, or any other testamentary documents;
- trusts (other than resulting, implied, or constructive trusts);
- powers of attorney;
- the making, execution or making and execution of any instrument 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;
- Government conditions of grant and Government leases;
- deeds, conveyances or other documents or instruments 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;
- assignments, mortgages or legal charges within the meaning of the Conveyancing and Property Ordinance (Cap. 219) or any other contract relating to or affecting the disposition of immovable property or an interest in immovable property;
- documents affecting a floating charge referred to in section 2A of the Land Registration Ordinance (Cap. 128);
- oaths and affidavits;
- statutory declarations;
- judgments (in addition to those referred to in section 6) or orders of court;
- warrants issued by a court or a magistrate;
- negotiable instruments (but excluding cheques that bear the words “not negotiable”); and
- proceedings before various courts and tribunals of Hong Kong.