Are e-signatures legal, admissible, and enforceable in Hong-Kong?
The Electronic Transactions Ordinance (ETO) governs the use of e-signatures in Hong Kong.
The ETO states that for most types of contracts, an electronic signature has the same validity and enforceability as a “wet” signature, in accordance with the provisions of the ETO i.e., as long as the following criteria are met:
a) the electronic signature must be attached to or logically associated with the electronic record;
b) the electronic signature process must be reliable and appropriate given the purpose for which the signature is required;
c) the recipient must consent to the signatory using an electronic signature.
There are no express requirements for the electronic signature to be in a certain form or format (as long as it fulfils the above requirements) but in practice, e-signatures tend to take the form of a typed name or digital image of a handwritten signature, or a unique digital “fingerprint” created using bespoke software.
Are there certain documents that cannot be e-signed in Hong-Kong?
Simple electronic signatures are only legal and enforceable for transactions not involving government entities. However, for transactions involving government entities, a digital signature is required. Please see our responses to question 3 for further information.
In addition, certain specific types of documents (mainly testamentary documents, certain trust documents, documents concerning land and property transactions, and powers of attorney) cannot be validly executed with an electronic signature. The comprehensive list of exclusions may be found under Schedule 1 of the ETO and are as follows:
(i) The creation, execution, variation, revocation, revival, or rectification of a will, codicil, or any other testamentary document;
(ii) The creation, execution, variation, or revocation of a trust (other than resulting, implied, or constructive trusts);
(iii) The creation, execution, variation, or revocation of a power of attorney;
(iv) 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;
(v) Government conditions of grant and Government leases;
(vi) 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;
(vii) 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;
(viii) A document effecting a floating charge referred to in section 2A of the Land Registration Ordinance (Cap 128);
(ix) Oaths and affidavits;
(x) Statutory declarations;
(xi) Judgments (in addition to those referred to in section 6 above) or orders of court;
(xii) A warrant issued by a court or a magistrate;
(xiii) Negotiable instruments.
Does local regulation govern the use of digital IDs and/or certificates for e-signatures in Hong-Kong?
The ETO states that in transactions involving government entities, a signature requirement under the law can only be satisfied by a “digital signature” supported by a recognized digital certificate issued by a certification authority recognized under the ETO. A “digital signature” is a more secure form of electronic signature supported by a recognized digital certificate that is generated using asymmetric encryption technology and has been authenticated. Please refer to our answers to question 4.
The ETO does not refer to qualified electronic signatures, which is a concept used under EU law.
Does local law provide certification bodies / trust services that users of e-signatures should be aware of in Hong-Kong?
In Hong Kong, there are only two recognized digital certification authorities (CA), the Postmaster General of the Hong Kong Government and Digi-Sign Certification Services Limited.
The Postmaster General is a recognized CA by virtue of Section 34(1) ETO, whereas Digi-Sign Certification Services Limited is a recognized commercial CA that has been granted recognition under the voluntary CA recognition scheme under Section 20 of the ETO by application to the Government Chief Information Officer.
Further information on the two CAs can be found at the following links:
*DISCLAIMER: The information contained in this guide is for information purposes only, provided as is as of the date of publication and should not be relied upon as legal advice or to determine how the law applies to your business or organization. It is recommended that you seek guidance from your legal counsel with regard to law applying specifically to your business or organization and how to ensure compliance. OneSpan does not accept liability for the contents of these materials or for third parties materials.
Last updated: November 2020