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Insight from the Recent CFA decision in Commissioner of Inland Revenue v Poon Cho Ming, John – Whether Benefits Received on Termination of Employment are Taxable or Not

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Employee termination is not uncommon during economic downturn or group restructuring. The termination payments or the compensation packages, especially for top executives or senior employees, often consist of many components such as salaries, gratuities, discretionary bonuses, golden handshakes, settlement sum for the employment dispute. Given the diversified nature of the compensation components, it might not be easy to identify which part of entire package is taxable and which is not under the definition of section 8(1) of the Inland Revenue Ordinance, Cap. 112 (“IRO”).

As a starting point, the IRO provides that only income earned in the course of employment is chargeable to salaries tax. It is however not always easy to determine which compensation component has direct corelation to the employment and which is not. The precedent case, Fuchs v Commissioner of Inland Revenue [2011] 14 HKCFAR 74, offers some guidance on this issue. The Court ruled in Fuchs that what an employee received in satisfaction of his rights under his contract of service was taxable, while what he received in abrogation of his rights under the contract was not taxable.

The Court of Final Appeal has reaffirmed such position in its recent decision in Commissioner of Inland Revenue v Poon Cho Ming, John [2019] HKCFA 38 whereby it was held that rewards for past services and inducements to enter into employment and providing future services are chargeable under the said provision, whereas payment which were for something else were not chargeable. This article seeks to discuss the legal principles concerning the subject matter and how unnecessary dispute could be avoided.

A. Brief facts in Poon Cho-Ming case

The Respondent Taxpayer (‘Respondent’) was employed as a director of the Company pursuant to a written employment contract dated 20 October 1999 (‘Service Agreement’). In July 2008, his employment was abruptly terminated without cause. The Respondent and the Company entered into negotiations, with legal representatives on both sides, which resulted in a separation agreement dated 20 July 2008 (‘Separation Agreement’) to terminate the employment on the same day.

During the employment, the Respondent was eligible to be considered for a discretionary bonus and for the grant of unvested share options under an employee’s shares option scheme. Under the scheme, Options granted in one year would vest, provided the Respondent was still employed by the company, in annual tranches over the following 5 years.

After the termination of his employment, the Respondent received payments and benefits from the Company and were taxed by the Commissioner of Inland Revenue. The items that were in disputes are as follows.

  1. EUR500,000 provided for under the Separation Agreement, labelled as a ‘payment in lieu of a discretionary bonus’ (‘Sum D’); and
  2. the amount derived from the exercise of the Respondent’s share options which the Company agreed under the Separation Agreement to vest on an accelerated basis (‘Share Option Gain’).

The Commissioner of Inland Revenue, the Board of Review and the Court of First Instance considered and ruled that the above sums constituted income ‘from’ the Respondent’s employment and were therefore chargeable to Salaries Tax under section 8(1) of the IRO.

The Respondent appealed to the Court of Appeal which overturned the CFI’s decision. The Court of Final Appeal upheld the decision of the Court of Appeal and unanimously decided that the above sums were ‘for something else’ and were not therefore taxable under section 8(1) of the IRO.

B. The relevant legal principles

The ‘operative test’ is succinctly summarized by Ribeiro PJ in Fuchs (at para 22).

In short, the question that needs to be asked is: ‘in the light of the terms on which the taxpayer was employed and the circumstance of the termination, what, in substance not form, the sum and benefits is for?’

If the purpose or nature of the payment constitutes income from employment, the payment is taxable under s.8(1) IRO, as illustrated in the table below.

 Purpose or nature of the paymentIncome from employment
(s. 8(1) IRO)		Taxability
1‘acting as or being an employee’YesYes
2 ‘as a reward for past service’ Yes Yes
3 ‘as an inducement to enter employment or for future services’ Yes Yes
4‘for something else’NoNo
C. Application of the test to the facts of Poon Cho-Ming Case

In Poon Cho-Ming case, the IRD was of the view that both Sum D (i.e. the payment in lieu of discretionary bonus) and Share Option Gain were employment income because “discretionary bonus” was employment performance-linked and Share Option Gain was derived from employee benefit scheme. 

The Court, however, was of the view that both Sum D and Share Option Gain were not Respondent’s entitlement under the terms of the Service Agreement, nor had he any accrued rights on his termination which he could enforce at law in relation to them.

Although Sum D was described as a substitution of the discretionary bonus, the Court preferred substance over form. The Court analysed the facts and found that Sum D is, in substance, materially different from the discretionary bonus, in term of their purpose and nature. The amount of Sum D was arrived arbitrarily by way of negotiation between the Respondent and the CEO of the company, without reference to the performance of the Respondent and other considerations or procedure which would have been relevant in determining discretionary bonus in the Company.

The Court also found that the accelerated vesting of the share options under the Separation Agreement constituted a new right. With regard to the terms of the Grant Letters, the Court found that the original right was plainly not exercisable on the separation date and would have lapsed if the Respondent was no longer an employee of the Company. The new right under the Separation Agreement replaced the original right under the Service Agreement, allowing the Respondent to exercise the share options within 3 months from the separation date when he was no longer an employee of the Company.

The Court of Appeal concluded (and the CFA agreed) that the purpose of Sum D and Share Option Gain were for something else. The aforesaid benefits were found to be the consideration for the Respondent Taxpayer agreeing to:-

  1. ‘go quietly’ with a joint announcement that he had ‘resigned’ to mitigate adverse market reaction;
  2. additional post-employment covenants in the Separation Agreement which created new obligations on him; and
  3. settle or abrogate any and all claims which he might have against the Company arising from the termination of his employment.
D. Insight from Poon Cho-Ming case

The CFA’s decision in Poon Cho-Ming has reaffirmed the orthodox position as set down in precedents. However, the application of the legal principles is not a straightforward exercise. Detailed analysis of the facts in each case is required. How the termination letter or the separation agreement is crafted and the wordings therein could lead to unnecessary confusion and debate.

To avoid the hassle of litigation, the employers and/or taxpayers should involve legal representatives in the early stage of termination process. A well-structured termination package, careful drafting of agreements as well as appropriate responses to the Authorities will help reflect the true intent and nature of the termination payment and save taxpayers from unnecessary tax exposure.

Our firm has extensive experience in advising on employment-related matters and on tax advisory matters. If you have any question regarding the topic discussed above, please contact our partner Anna Chan at anna.chan@oln-law.com for further assistance.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Hong Kong Company Re-Domiciliation Regime: A New Gateway for International Businesses

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From 23 May 2025, Hong Kong has introduced a modern company re-domiciliation framework that allows overseas companies to relocate their place of incorporation to Hong Kong without creating a new legal entity. The initiative, implemented under the Companies (Amendment) (No. 2) Ordinance 2025, is designed to strengthen Hong Kong’s appeal as a premier international business centre and to encourage inward corporate migration.

This new regime provides a practical solution for multinational groups seeking legal certainty, tax efficiency, and continuity when restructuring their global footprint.

Overview of the Re-Domiciliation Framework

Under the Hong Kong re-domiciliation regime, an eligible foreign company may transfer its corporate domicile to Hong Kong while preserving its legal identity. The company continues uninterrupted, retaining its assets, liabilities, contractual rights, and legal proceedings.

Once approved, the re-domiciled entity is treated in the same way as a company originally incorporated in Hong Kong and becomes subject to the Companies Ordinance and other applicable local legislation.

Key Characteristics of the Regime

The regime offers several defining features that distinguish it from traditional corporate migration options:

  • Eligible Company Types
    The regime applies to non-Hong Kong companies comparable to Hong Kong private companies limited by shares, public companies limited by shares,  private unlimited companies with share capital and public unlimited companies with share capital.  Companies limited by guarantee without share capital are excluded.
  • No Economic Substance Threshold
    There is no minimum size, turnover, or sector requirement, making the regime accessible to a broad range of businesses.
  • Retention of Legal Structure
    Companies must re-domicile using their existing legal form. Conversion into a different corporate type is not permitted as part of the process.
  • Full Local Status After Migration
    Once re-domiciled, the company is regarded as a Hong Kong-incorporated entity for corporate law purposes.
  • Inbound-Only Mechanism
    The regime allows migration into Hong Kong but does not provide a statutory route for companies to migrate out.
  • Ongoing Compliance Obligations
    Re-domiciled companies must maintain a registered office in Hong Kong and comply with all applicable filing, governance, and statutory requirements.

Strategic Benefits of Re-Domiciling to Hong Kong

Re-domiciliation offers significant commercial and operational advantages:

Continuity of Business Operations

The company’s existence remains uninterrupted. There is no liquidation, asset transfer, or novation of contracts, which helps preserve commercial relationships and regulatory approvals.

Cost and Time Efficiency

By avoiding dissolution and re-incorporation, companies reduce administrative burden, professional fees, and execution risk.

Eligibility Requirements

To qualify for re-domiciliation, a company must satisfy both jurisdictional and corporate conditions.

Legal Eligibility
  • Permission Under Home Jurisdiction Law
    The laws of the company’s original jurisdiction of incorporation must allow outbound re-domiciliation (for example, permitted in the BVI and Cayman Islands but restricted in certain jurisdictions such as Bermuda).
  • Comparable Corporate Form
    The company must closely correspond to one of the eligible Hong Kong company types.
  • Operating History
    The company must have completed at least one full financial year prior to applying.
Financial and Integrity Safeguards

The regime incorporates safeguards to protect stakeholders and the integrity of the process:

  • Solvency Confirmation
    The company must not be in liquidation or receivership. Directors are required to certify solvency.
  • Good Faith Requirement
    Applications must be made genuinely and not for improper or abusive purposes.
  • Member and Creditor Protection
    Approval from at least 75% of members is required, and creditors must be formally notified of the proposed re-domiciliation.

Re-Domiciliation Application Process

When documentation is complete, the re-domiciliation procedure typically takes around two weeks.

Key documents include:

  • Proposed Articles of Association aligned with Hong Kong requirements
  • Legal opinion from the original jurisdiction confirming eligibility and compliance
  • Director’s certificate confirming solvency and good faith
  • Recent financial statements (audited or unaudited, dated within the last 12 months)
  • Prescribed application forms containing corporate particulars

Upon approval, the Companies Registry issues a Certificate of Re-Domiciliation, confirming the company’s status as a Hong Kong entity.

Following re-domiciliation, the company must:

  • Deregister from its original jurisdiction within 120 days
  • File post-registration forms reporting corporate details
  • Maintain a registered office in Hong Kong
  • Appoint a Company Secretary and a Designated Representative

Hong Kong Tax Implications

Hong Kong’s territorial tax system provides clarity and potential advantages for re-domiciled companies:

  • Profits Tax
    Only profits arising in or derived from Hong Kong are subject to tax.
  • Tax Residency and Treaties
    Re-domiciled companies are generally regarded as Hong Kong tax residents for treaty purposes, subject to meeting substance and management requirements.
  • Stamp Duty
    No stamp duty is payable on the re-domiciliation itself, although subsequent transfers of shares may attract Hong Kong stamp duty.

Considerations for Regulated Industries

Companies operating in regulated sectors—such as banking, insurance, and financial services—must engage with the relevant regulators and comply with sector-specific legislation, including licensing and approval requirements under applicable ordinances.

Early regulatory engagement is strongly recommended to avoid delays.

Who Should Consider Re-Domiciling to Hong Kong?

The Hong Kong company re-domiciliation regime is particularly attractive for:

  • Businesses with existing or planned operations in Hong Kong
  • Financial institutions and insurers seeking regulatory alignment
  • Holding companies managing investment or intellectual property structures
  • Corporate groups aiming to access Hong Kong’s extensive tax treaty network
  • Multinational enterprises adapting to evolving global tax and transparency standards

Next Steps

The re-domiciliation regime offers a flexible and business-friendly route for companies seeking a stable, internationally recognised legal base in Hong Kong.

For tailored advice on whether re-domiciliation is suitable for your organisation, and for guidance on the application process, please contact us via the enquiry form.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Issuance of the Grant of Representation Is Only the Beginning – Not the End: Understanding the Importance of Vesting of Beneficial Interest

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In Hong Kong, when a person passes away, his or her estate does not automatically pass to anyone. Instead, the law requires that someone be formally authorised to manage the estate. To be appointed as the authorised representative, that person must obtain a Grant of Representation from the Probate Registry (“the Grant”).

However, many people mistakenly believe that they automatically become the owner of the deceased’s assets upon the issuance of the Grant. In fact, the Grant marks only the starting point of the estate administration process — not the end.

This article explains why, even after obtaining the Grant, further steps are required to transfer the deceased’s assets so the beneficial ownership can be properly vested (namely, to become a real owner of the property)

1. What does the Grant actually do?

The issuance of the Grant (i.e. Probate or Letters of Administration) only confers legal authority on the executor (where there is a Will) or administrator (where the deceased left no Will) (collectively referred to as “Personal Representative”) to:

  • identify and collect the deceased’s assets;
  • pay the deceased’s debts and expenses (such as funeral costs and taxes);
  • manage, protect, and, if necessary, sell estate property;
  • ultimately distribute the estate according to the Will or intestacy laws.

In other words, the Grant only gives the personal representative authority to deal with the deceased’s assets. It does not transfer any beneficial interest to the Personal Representative. The Personal Representative must follow proper legal procedures to ensure that the beneficial interest vests in the rightful beneficiaries.

2. The Need for the Subsequent Step: Vesting

Vesting is the legal process by which the beneficial interest in estate property is transferred to the person entitled — whether that is a beneficiary under a Will, or, in some cases, the administrator(s) themselves if they are the proper recipient under the intestacy rules.

Depending on the type of asset(s), vesting may require formal steps such as:

  • Flat, land, property: execution of an assent and updating the relevant authorities, such as Land Registry.
  • Bank balance or shares: giving instructions to the relevant bank(s) for distribution.
  • Other assets: For example, assignment contractual rights or business interests, physical delivery.

Only after completing the act of vesting, the individual becomes the beneficial (i.e. “real”) owner of the property.

3. When the Personal Representative is also the Beneficiary

It is common for a personal representative to also be entitled to inherit some or all of the estate. However, even in such circumstances, the act of vesting remains necessary. This is because the Personal Representative holds the estate property only as Personal Representative of the deceased, not in their personal capacity, until the vesting process is properly completed.

This ensures proper accounting, protects creditors, prevents misuse of estate assets, and provides clarity and finality in the estate distribution process.

Conclusion

Obtaining a grant of probate or letters of administration is an important milestone in the estate administration process, but it is not the final step.

The Personal Representative must still carry out the act of vesting to transfer beneficial ownership to the rightful parties — whether beneficiaries or, in some cases, themselves.

This distinction between the authority to administer and actual ownership is fundamental in estate law, ensuring proper protection of the deceased’s assets and fair distribution to those entitled.

Our Senior Associate Kacy Lam has experience in preparing land documents (including Assents) and handling land matters. Therefore, we can assist the client not only with the probate application, but also with the subsequent vesting process. Please feel free to contact us for more information.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Enduring Power of Attorney (EPOA), Committeeship, and Guardianship in Hong Kong

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How do you protect family assets when mental health deteriorates? As life expectancy rises in Hong Kong, more and more of us are living into our golden years. But with age comes a potential decline in mental capacity. Lacking the legally required mental capacity, we are unable to engage in the most basic of financial transactions such as heading to the bank to withdraw money to pay hospital bills.

Enduring Power of Attorney (EPOA)

To avoid the situation where institutions and authorities refuse to accept your instructions on financial transactions on the basis of your lack of mental capacity, one should consider setting up an Enduring Power of Attorney (EPOA). Under the Enduring Powers of Attorney Ordinance, an EPOA allows you to choose a trusted individual to manage your property and financial affairs in the event mental incapacity sets in.

There are a few technical requirements that must be met before an EPOA becomes valid. The most important one is that the document must be witnessed by a Hong Kong solicitor and certified by a Hong Kong doctor, usually a psychiatrist, who conducts a mental capacity test and confirms that you have the requisite mental capacity to be signing over your rights to another person.

To protect your EPOA from future challenges, you should ask your solicitor if periodic assessments or renewal of the EPOA is recommended.

Committeeship

If no EPOA is in place before the person becomes mentally incapable, families will need to apply to the court for Committeeship under Part II of the Mental Health Ordinance. The application is expensive and takes a long time and every year the guardian must report to the court on monies spent.

Guardianship

Whilst the Enduring Power of Attorney deals with the financial affairs of a person, a guardianship order is focused on the welfare and day-to-day care of a mentally incapacitated person.

If you would like to have a confidential discussion about creating or challenging an EPOA, applying for guardianship, or have questions about other aspects of estate planning, please feel free to contact us. We’re here to help.

Estate Planning in Hong Kong

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Have you made preparations to ensure your loved ones will receive the assets you worked hard to acquire? Or is this something you keep postponing? Thinking about the topic of death can feel overwhelming. However, without a Will, your assets will be distributed in accordance with Hong Kong legislation which may not reflect your wishes.

Let’s explore some critical considerations before drafting a Will.

First, you should identify the persons who will inherit. Those are the beneficiaries. It’s also vital to have a contingency plan in case one of your beneficiaries predecease you.

Secondly, select an executive will be responsible for applying to the court for probate and upon the granting of a court order, engaging in the actual distribution of your assets. For example, dealing with the banks to access items stored in safety deposit boxes and handing over cash to beneficiaries.

Additionally, you should carefully consider how and where you will store your Will.

In addition to drafting a Will, if you wish to ensure that your finances are well taken care of in the event you become mentally incapacitated, you should think about establishing an Enduring Power of Attorney (EPOA). This document is effective only during your lifetime and enables you to designate a trusted individual to manage financial matters on your behalf, such as paying hospital bills, engaging in real estate transactions, and handling other financial matters.

The reason an Enduring Power of Attorney (EPOA) is needed in the event you become mentally unable is because financial institutions and other authorities will not accept your instructions once they learn of your mental incapacity.

Ultimately, effective estate planning protects both you and your loved ones. Even with a Will in place, disputes can arise, potentially leading to lawsuits, which can drag on for years and become expensive. Often, death is an emotionally charged event and can cause people to become different from their usual selves.

If you would like to discuss how to effectively plan your Will, please feel free to reach out to us anytime.

Issues to Consider Before Signing a Service Agreement with a Critical Infrastructure Operator

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Imagine receiving an unexpected request from the Commissioner’s Office for your firm’s network diagrams and system details. This is a pre-designation inquiry under Hong Kong’s Protection of Critical Infrastructures (Computer Systems) Ordinance (Cap. 653). The OCCICS FAQs make clear that authorities use this power to assess whether your organisation should be designated as a Critical Infrastructure Operator (CIO).

Designated CIOs must fulfil obligations under three categories: organisational, preventive, and reporting. While CIOs cannot delegate ultimate accountability (OCCICS FAQ 6), they typically work with service suppliers — cloud providers, IT vendors, managed security firms — to meet these requirements. This creates “flow-down” obligations for suppliers through detailed compliance clauses in service agreements.

Below is a comprehensive guide to eight key issues, explaining the CIO’s legal duties under the Ordinance, the supplier’s perspective, and practical negotiation points to achieve balanced terms.

1. Basic Definitions

CIOs have a legal obligation to identify and designate Critical Computer Systems (CCSs) under section 13, focusing on those where disruption would seriously affect society or the economy. They cannot delegate core accountability (OCCICS FAQ 6 stresses that outsourcing does not relieve them of responsibility).

From a supplier’s viewpoint, overly broad or ambiguous definitions can unexpectedly widen liability and compliance burdens. The Ordinance defines a”computer system” broadly as any device or group of interconnected devices that processes, stores, or transmits data electronically (s.2). A “security incident” covers any unauthorized or adverse event affecting a CCS, including breaches, malware, ransomware, or integrity compromise (s.2 and Code of Practice v1.0).

Key negotiation points: Insist on precise definitions that limit the agreement’s scope to the specific services you provide. Explicitly exclude non-relevant systems and agree on clear triggers for what constitutes a reportable incident (e.g., excluding routine hardware failures or non-cyber events). This prevents overreach and protects against unintended regulatory exposure.

2. Incident Reporting Obligations

CIOs bear the ultimate duty to report serious incidents within 12 hours and others within 48 hours (initial notification) plus a 14-day written report (Code of Practice v1.0, Category 3). They must ensure supply chain partners support this process without shifting the primary reporting burden.

Suppliers should restrict their role to prompt internal notification to the CIO, avoiding direct regulatory reporting obligations that could complicate liability.

Key negotiation points: Require the supplier to alert the CIO within a tight window (e.g., 2–4 hours) of detecting any potential incident affecting the CIO’s systems. Include detailed joint response protocols for containment, eradication, and recovery. Negotiate clear cost allocation for investigations, external forensics, or regulatory assistance, and establish mutual timelines that align with the CIO’s reporting deadlines to avoid cascading delays.

3. Limitation of Liability

CIOs face significant fines up to HK$5 million for non-compliance (s.58), so they seek strong contractual protections against supplier-related risks. Suppliers must avoid unlimited or disproportionate exposure, especially since CIOs cannot fully transfer their regulatory liability.

Key negotiation points: Aim for a reasonable overall cap, such as 1–3 times the fees paid in the preceding 12 months. Explicitly exclude indirect, consequential, or punitive losses. Carve out exceptions only for gross negligence, willful misconduct, or breach of confidentiality. Negotiate balanced clauses that reflect the CIO’s primary duty while protecting the supplier from disproportionate fallout from regulatory fines or third-party claim

4. Indemnity

CIOs must ensure preventive measures extend to the supply chain (Category 2 obligations), and they remain fully liable for overall compliance. They often demand broad indemnity covering losses, regulatory fines, or third-party claims arising from supplier breaches.
Suppliers should push for mutual indemnity and limit it to direct, proven faults to avoid one-sided exposure.

Key negotiation points: Require the CIO to indemnify the supplier for issues caused by inaccurate information, CIO-provided data errors, or CIO faults. Include coverage for defense costs and a requirement for prompt notice of claims. Negotiate evidence thresholds for indemnity triggers and reasonable caps on indemnity amounts to keep exposure proportionate and fair.

5. Data Access & Processing

CIOs must conduct annual risk assessments that include data sensitivity and interdependencies (Category 2), and comply with the Personal Data (Privacy) Ordinance (PDPO) if personal data is processed.

Suppliers should restrict access to only necessary data and ensure the CIO provides accurate, complete information for processing.

Key negotiation points: Clearly define data ownership — the CIO retains title to its data. Include strict terms for purpose limitation, data minimization, security safeguards, and secure deletion or return upon termination. Negotiate provisions for supplier assistance with data subject rights requests and regulatory data access demands, while protecting the supplier’s own proprietary processes and algorithms.

6. Confidentiality

CIOs face strict secrecy obligations on designation-related information (s.57, with fines up to HK$1 million for unauthorized disclosure). They must protect sensitive data in security plans, assessments, and incident reports.

Suppliers should allow necessary regulatory disclosures while safeguarding their own intellectual property and trade secrets.

Key negotiation points: Require non-disclosure agreements (NDAs) at the Ordinance’s level of protection. Ensure confidentiality obligations survive termination for a reasonable period. Negotiate clear exceptions for legal or regulatory requirements, with prior notice to the CIO where feasible, and reciprocal protections for supplier confidential information.

7. Termination Rights

CIOs must notify material changes, such as operator cessation or significant system alterations (Category 1), and maintain operational continuity during transitions.

Suppliers should secure payment for work already performed and avoid abrupt or punitive terminations.

Key negotiation points: The CIO shall maintain the right to immediately terminate a supply contract in case of serious incident but make sure the operation of the computer system won’t be affected. Include reasonable cure periods (e.g., 30 days) for non-serious breaches before termination can take effect. Negotiate detailed transition support provisions, including data handover, continued service during wind-down, and handling of retained data to ensure a smooth and orderly exit.

8. Audits and Inspections

CIOs are required to conduct biennial independent audits (Category 2) and must permit Commissioner inspections and investigations (Part 5 powers).

Suppliers should limit the frequency, scope, and cost burden of audits while maintaining reasonable cooperation.

Key negotiation points: Grant the CIO and regulators reasonable audit rights over relevant services. Include provisions for periodic reviews and cooperation with external auditors. Negotiate clear scope restrictions (e.g., limited to services provided), advance notice requirements, and cost reimbursement or sharing mechanisms. Include reciprocal audit rights for fairness.

Final Tip

Treat the agreement as a strategic partnership rather than a defensive document. Thoroughly document all negotiations and compliance commitments — this record can support due diligence defenses under sections 65–66 if disputes arise. As of January 13, 2026, no designations have been announced, giving suppliers valuable time to negotiate balanced, protective terms.

Ready to review your draft agreement or prepare for upcoming negotiations with a CIO? Contact Oldham Li & Nie for expert, practical guidance tailored to your business.

Summary

Service suppliers contracting with Critical Infrastructure Operators (CIOs) under Cap. 653 face significant “flow-down” compliance burdens because CIOs cannot delegate ultimate regulatory accountability. The article outlines eight critical negotiation points:

  1. Definitions
    – Insist on precise scope limitations to avoid unintended regulatory exposure for systems you don’t control.
  2. Incident Reporting
    – Commit to fast internal alerts (2-4 hours) while avoiding direct regulatory reporting duties; establish clear cost allocation for investigations.
  3. Liability Caps
    – Negotiate reasonable limits (e.g., 1-3× annual fees) excluding indirect/consequential losses, with carve-outs only for gross negligence or willful misconduct.
  4. Indemnity
    – Push for mutual indemnity with evidence thresholds and caps, ensuring the CIO indemnifies you for its own faults or bad data.
  5. Data Terms
    – Confirm CIO data ownership; require purpose limitation, security safeguards, and assistance provisions for regulatory access requests.
  6. Confidentiality
    – Align NDAs with the Ordinance’s strict secrecy rules (s.57, HK$1M fines), with carve-outs for legal/ regulatory disclosures.
  7. Termination
    – Ensure mutual rights, cure periods (e.g., 30 days), and detailed transition/data handover provisions.
  8. Audits
    – Limit audit frequency/scope; negotiate advance notice, cost sharing, and reciprocal audit rights.

With no designations yet announced as of January 13, 2026, suppliers have a narrow window to negotiate balanced terms before CIO obligations take full effect.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Copyright Registration: Is It Necessary or Just Optional?

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Copyright protection is granted automatically upon the creation of a work, without the need for registration. In fact, many jurisdictions do not maintain an official copyright registry.

Under the Berne Convention, a copyrighted work created by an author in any member state will be recognized and protected in all other member states.

In cases of copyright infringement, the copyright owner must provide evidence as proof of ownership. The evidence may be in the form of an affidavit or affirmation made by the owner that may serve as the proof of copyright ownership.

Though copyright registration is not mandatory, some jurisdictions have official authorities or business organizations that offer voluntary copyright registration services. These entities will issue copyright registration certificates, which can serve as proof of ownership and the date of creation of the copyrighted work.

These official authorities or business organizations will typically issue copyright certificates within one to three months, provided all required documents are properly submitted and in order.

The table below shows the availabilities of copyright registration in Asia and other popular countries for your easy reference:

Copyright Registration available in Asia
JurisdictionsRegistration AuthoritiesRemarks
AfghanistanMinistry of Information and Culture of AfghanistanVoluntary, provides proof of ownership.
ChinaChina Copyright Protection Center (“CCPC”)Voluntary but strongly recommended as it serves as prima facie evidence of ownership, in particular for software.
IndiaCopyright Office of IndiaVoluntary, establishes prima facie evidence of the facts contained on the registration certificate and may be used in court as proof of those facts.
IndonesiaDirectorate General of Intellectual Property of IndonesiaVoluntary but highly recommended as it provides official proof of ownership, which is crucial in legal disputes involving copyright infringement.
JapanAgency for Cultural AffairsVoluntary, establishes presumption of facts contained in registration for use in court.
Korea (South)Korea Copyright CommissionVoluntary, provides proof of ownership and date of creation.
MalaysiaIntellectual Property Corporation of MalaysiaVoluntary Notifications is to assist in providing prima facie evidence of ownership and evidence of date of creation, which aids the copyright owner to present to the court as proof of the facts made.
PakistanCopyright Office under the Intellectual Property Organization of PakistanVoluntary, provides official proof of ownership.
PhilippinesNational Library of the PhilippinesCopyright Certification is issued for the purpose of giving information on the fact of copyright registration and deposit of the copyrighted work in the National Library of the Philippines.
Taiwan (not a member of Berne Convention)Taiwan Copyright Association   Taiwan Development & Research Academia of Economic & Technology (“TEDR”)#Voluntary, provides prima facie evidence of ownership and date of creation.   #Copyright registration with the TEDR is subject to payment of annual fees starting from the 2nd year onwards.  Otherwise, the TEDR will destroy the copyright work file and only retain the certificate on their record.
ThailandDepartment of Intellectual Property of ThailandVoluntary, provides official proof of ownership.
VietnamCopyright Office of VietnamVoluntary, provides official proof of ownership.
Copyright Registration available in other popular countries
JurisdictionsRegistration AuthoritiesRemarks
CanadaCanadian Intellectual Property OfficeVoluntary, provides copyright owners with the official proof of ownership in case of infringement
USUnited States Copyright OfficeVoluntary, but copyright registration is still necessary for U.S. copyright owners to sue for infringement in federal court.  For foreign copyright owners, it is only required when suing.  However, copyright owners cannot claim statutory damages and/or attorney’s fee for pre-registration infringements.
FranceNational Institute of Industrial Property*   OR via voluntary deposit (1) Société des Auteurs et Compositeurs Dramatiques (SACD) (for dramatic works); (2) Société des Auteurs, Compositeurs et Éditeurs de Musique (SACEM) (for musical works) ^* Voluntary, provides official proof of ownership           ^ SACD and SACEM assist their members (copyright owners) to collect the royalties pertaining to the exploitation of their works.
PortugalGeneral Inspection of Cultural ActivitiesVoluntary, provides official proof of ownership
SpainSpanish Intellectual Property RegistryVoluntary, provides official proof of ownership
How We Can Help

We can assist clients in preparing affidavits or affirmations as proof of ownership for their copyrighted works. Additionally, our Shanghai office holds a registered account with the CCPC, allowing us to directly facilitate copyright recordal in China on behalf of our clients.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.