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How to settle civil disputes: Is the Case as strong as initially assessed?

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Something must have gone wrong before parties commence civil litigation, whether the problem arises from breach of contract, unpaid invoices, or differing interpretations of terms of the contract. As civil litigation is costly, time-consuming, unpredictable, and at times excruciating for the parties’ peace of mind, it is not uncommon for parties to compromise and settle the civil dispute midway in the litigation proceedings. 

After years of advising and settling civil disputes, this series hope to shed light on the dos and don’ts for parties when they enter into settlement negotiations, and when they eventually sign and execute the settlement agreement.

Halfway into the litigation, when more evidence has now been discovered and more financial resources have been put, it is not uncommon for parties to consider settling the case. However, what are the relevant factors in play in deciding whether settling is the right move?

One of the key factors is to re-assess the merits of the case: Is the case as strong as initially assessed? If not, an otherwise unattractive settlement amount may now become lucrative.


1. Limited information/material at the Pleading Stage

Before commencing a formal litigation, the information available to the party is rather limited, as the information and evidence available are usually confined to the ones in one’s own possession, custody or power.

Whilst it is possible to speculate the likely defence(s) or case theory to be advanced by the opponent(s)(s), such is meagre at best, as compared to what will eventually rely upon by the opponent(s) and what will surface in the later stages of the litigation. Without hearing the other side’s story and learning about the evidence in the opponent(s)’s possession, custody or power, it is possible for one to be overly optimistic about the merits of his case, and to neglect the possible risks.

2. Opponent(s)’s evidence made available at the Discovery Stage

Before the discovery stage, one cannot easily access to the documents or materials under your opponent(s)’ possession, custody or power, due to reasons of confidentiality and trade secrets.

However, at the discovery stage, parties are required to mutually disclose all the evidence at its possession, custody or power, which are relevant to the case. As such, many of the documents which are otherwise confidential would now become accessible and discoverable.

These newly available documents/materials disclosed by the opponent(s), e.g. internal business documents and internal protocol, may drastically affect the merits of one’s case and prospect of recovery, as many factual and legal assumptions may no longer hold true. For instance, whilst one may allege that the opponent(s) has failed to exercise due care in discharging its contractual or tortious duties, yet the internal protocol and internal correspondence disclosed by the opponent(s) may reveal that the opponent(s) had already duly complied with its internal protocol and exhausted all means that could have done in preventing the incident.

The litigant and its legal advisor(s) must therefore carefully re-assess the merits of one’s case in the light of the evidence newly disclosed.

3. Merits/views of expert evidence

At the later stage of the proceedings, it may be the case that it is necessary for the parties to seek expert evidence to resolve certain issues. For instance, expert evidence may be required to assess whether the litigant’s conduct amounts to breach of industry standard, or to opine on the value of the asset in dispute.

Expert evidence can significantly influence the outcome of a case by providing specialized knowledge that clarifies complex issues, bolsters credibility, or challenges opposing claims.

Its weight depends on the expert’s qualifications, the reliability of their methodology, and the relevance of their expert evidence to the issues in dispute. When compelling expert evidence is introduced, it may strengthen or undermine a litigant’s position.

The quality of expert evidence therefore mandates litigants to re-assess the merits of their respective cases.

4. Availability/unavailability of key witness at the Trial Stage

It is not uncommon to encounter scenarios where due to various circumstances (e.g. incapacity or death), much to the litigant’s surprise, the key witness(es) unexpectedly becomes unavailable to attend trial to give evidence in support and be cross-examined by the opponent(s).

If a pivotal witness is available, their account could strengthen a litigant’s position, while their absence may weaken the case by leaving gaps in the narrative or proof.

This shift in the evidentiary foundation can compel a litigant to re-assess the case’s merits, potentially prompting adjustments in strategy, such as pursuing settlement, or adjusting expectations for trial outcomes.

Litigation tools to remedy the position

In order to better assess the merits of the case, whether pre-action or during the litigation, it is vital to consider using various litigation tools to obtain more relevant information in order to assess one’s merits of the case. These tools serve to uncover critical evidence, clarify opposing claims, and streamline decision-making, reducing risks and costs. Litigation tools available to litigants include:-

  • Pre-Action Discovery (O.24, R.7A of the Rules of High Court (Cap. 4A) (“RHC”); O. 24, R.7A of the Rules of the District Court (Cap. 336H) (“RDC”)): Enables one to obtain documents from potential parties before filing a claim, revealing key information to evaluate whether a case is worth pursuing, saving time and resources.
  • Further and Better Particulars (F&BP) (O.18, R.12 of RHC; O.18, R.12 of RDC): Compels opponent(s)s to clarify vague assertions and claims during litigation.
  • Requests for Supporting Documents (O.24, R.10 and O.24, R.11A of RHC; O.24, R.10 and O.24, R.11A of RDC): Compels opponent(s)s to produce documents referred to in its pleadings, affidavits or witness statements.
Conclusion

Deciding whether to settle, and if so, at what amount, is a complicated judgment, which requires sophisticated legal advice derived from years in Courtroom, comprehensive legal research, and client-handling experience. One key exercise that litigants and their legal advisors must undergo is the continuous re-assessment of the merits of the case as the litigation progresses through the various litigation stages.

In particular, the factors of the newly available opponent(s)’s evidence, merits/views of expert evidence, and availability/unavailability of key witness all come into play in deciding whether to proceed with the litigation or to pursue settlement.

Further, by using litigation tools to uncover evidence or clarify claims, litigants are equipped with more information to assess the merits of one’s claims in order make an informed decision.

Should you have any enquiries regarding civil litigation and commercial agreements, please contact our firm.

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.

APAC Perspectives on Data Privacy Laws: A Globalaw Roundtable Discussion Recap

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On 25 April 2025, at the Globalaw Asia Pacific Regional Meeting in Osaka, Japan, our Partner and Head of Tax and Private Client, Anna Chan, joined Uday Singh Ahlawat of Ahlawat & Associates (India), Han Sung Kang of DLG Law Corporation (South Korea), Ariel Hung of Stellex Law Firm (Taiwan) and Yusaku Akasaki of Chuo Sogo LPC (Japan) for an insightful roundtable discussion on the evolving landscape of data privacy laws across key APAC jurisdictions.

Globalaw Asia Pacific Roundtable on Data Protection
Globalaw Asia Pacific Roundtable on Data Protection

The recent decade has seen an increase of phishing attacks and data breaches. With the introduction of the new cybersecurity law in Hong Kong which will come into effect next year, there is heightened concerns over data security and rights of data subjects. The roundtable discussion therefore offered a timely forum to visit topics such as obtaining consent from data subjects, protecting the rights of data subjects and data breaches reporting practices, as well as on recent legislative developments in in Hong Kong, India, Japan, South Korea, and Taiwan. This article summarises each of the participants’ inputs in the roundtable discussion, each speaking from their respective jurisdictions, on these topics.

Obtaining consent from data subjects
  • In Hong Kong, a data user must expressly inform the data subject the purpose for which the data is to be used on or before collection of the data. Provision of personal data pursuant to such information by the data subject shall be deemed sufficient consent which is implied. However, new consent from the data subject is required if such personal data shall be used for a new purpose. So far as cross-border transfer is concerned, the Personal Data (Privacy) Ordinance (“PDPO”) provides, among others, that data subject should also consent in writing specifically but this requirement has not come into effect yet.
  • In India, when seeking consent from data principals, it is crucial to sufficiently disclose that their personal information will be transferred to another entity. The details of such third-party entity (to which the data will be transferred) as well as the purpose of such transfer also needs to be disclosed. In the case of cross-border transfer of personal information, the manner of seeking consent from data principals remains the same.
  • In Japan, business operators must clearly outline the purpose of data collection and obtain specific consent for the cross-border transfer of personal information with certain exceptions.
  • In South Korea, informed and voluntary consent is essential for collecting and using personal data, unless a legal exception applies. Also, consent for collection, third-party provision, and cross-border transfers must be clearly distinguished and obtained separately.
  • In Taiwan, organizations must expressly inform data subjects when collecting personal data, detailing the collection purposes, data types, usage scope (duration, geography, territory, and methods), data subject rights, and consequences of non-disclosure, unless exempt by law. When collection involves planning for cross-border transfers, intended overseas jurisdictions should also be specified.

Is there a “right to be forgotten”?
  • In Hong Kong, while there is no express “right to be forgotten”, under the PDPO, data users must ensure personal data is retained only as long as necessary, and generally must take practicable steps to erase the personal data held by them where it is no longer required unless the statutory exemptions apply.
  • In India, there is no clear statutory provision for the “right to be forgotten” but the Indian courts have recognized the “right to be forgotten” in some judicial pronouncements. The Indian judiciary has also attempted to clarify the distinction between “right to be forgotten” and the “right to erasure” in their judicial pronouncements. Further, the forthcoming Digital Personal Data Protection Act (“DPDPA”) will provide for a statutory “right to erasure” (unless the statutory exemptions apply).
  • In Japan, while there is no express “right to be forgotten”, the Act on the Protection of Personal Information (“APPI”) recognises the right of data subjects to correct, add, or delete their personal data only on the ground that the retained personal data is contrary to the fact.
  • In South Korea, data subjects have the rights to access, correct, delete, and suspend the processing of their data, as well as to withdraw consent. While there is no express “right to be forgotten”, it is being increasingly recognised in practice as a separate right from the general deletion right. In common practice, business operators in South Korea often establish a defined retention period and periodically re-request consent.
  • In Taiwan, while there is no explicit “right to be forgotten”, similar protections exist under the Personal Data Protection Act (“PDPA”) through various data subject rights, including rights to access, correct, delete data and demand cessation of data processing and use. In practice, certain Taiwan courts have interpreted constitutional principles of informational self-determination and privacy to support this right, balancing individual rights against public interest when assessing removal requests, thus adapting to emerging digital privacy challenges.

Data breaches reporting practices
  • In Hong Kong, business operators are encouraged to voluntarily report data breaches in accordance with the best practices published by the Office of the Privacy Commissioner for Personal Data. For now, there are no specific criminal penalties for data breaches while civil liabilities may arise from breaches of contract, confidentiality, and negligence. That said, the newly enacted Protection of Critical Infrastructures (Computer Systems) Ordinance, expecting to take effect on 1 January 2026, will require the operators of crucial infrastructures in Hong Kong in the eight industries including energy, information technology, banking and financial services, transportation, telecommunications and broadcasting services and healthcare services to, among others, implement security plans and protocols, and report on security incidents. Failure to comply will result in fines ranging from HK$500,000 to HK$5 million.
  • In India, the forthcoming DPDPA prescribes that data breaches shall be reported to both the Data Protection Board of India and the data principal without delay. Failure on the part of data fiduciaries in providing such a notice could result in severe criminal penalties (as prescribed under the DPDPA).
  • In Japan, in the event of serious data security breaches, business operators are required to notify both the Personal Information Protection Commission (“JPIPC”) and data subjects. The APPI imposes criminal penalties for various improper handling of personal data as well as failure to comply with the JPIPC rectification requests and orders.
  • In South Korea, in the event of any leak involving sensitive personal data, business operators should notify the Korean Personal Information Protection Commission and data subjects within 24 hours of identifying such leak. Criminal penalties are imposed for intentional or severe negligence (e.g. illegal data sales or leaks), alongside with administrative fines, corrective orders, potential suspension of processing and public disclosure.
  • In Taiwan, the PDPA currently mandates that organisations are required to notify affected individuals of data breaches only after the relevant facts have been clarified. Criminal penalties apply for intentional misconduct, with a tiered system of administrative fines for other non-compliance. Notably, proposed amendments to the PDPA announced in March 2025 include heightened reporting requirements, and business operators should monitor these upcoming developments closely.

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.

Recent updates on IP practices in Hong Kong

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1. IPD new forms

The Intellectual Property Department (“IPD”) of Hong Kong has announced that a new set of Trade Marks Forms, Patents Forms and Designs Forms (“the new forms”) will be effective from 16 May 2025.

A key feature of all the new forms is the inclusion of a declaration requiring agents to confirm their local physical presence and residency or their engagement in business activities at the specified address in Hong Kong.

Additionally, the forms include a warning that providing false information or declarations constitutes an offence. The primary purpose of this requirement is to mitigate the risk of missed communications or deadlines if an agent lacks a physical presence in Hong Kong.

Therefore, IP owners should ensure they engage an agent with an actual physical presence in Hong Kong, rather than one that merely maintains a mailing address without conducting business activities.

Another notable feature of some of the new forms—specifically T8, T10, T11, P9, P10, P19, D5, and D11 – is the addition of data fields to capture the type and place of incorporation of IP owners, grantees, licensees/sub-licensees, mortgagees, and other relevant parties. This enhancement is designed to facilitate due diligence processes in relation to IP transactions.

IPD has provided the draft versions of the new forms for information purpose, see https://www.ipd.gov.hk/en/home/whats-new/index_id_628.html.

2. Absolute Grounds for Refusal of Trade Marks

IPD has revised the Chapter on “Absolute Grounds for Refusal of Trade Marks” with the aim to elaborating the Registry’s examination practice primarily focus on Sections 11(4)(a), 11(4)(b) and Section 11(5)(a) of Trade Marks Ordinance, summarize as follows:

Section 11(4)(a) –

marks contrary to accepted principles of morality, if the marks are: –

  • Offensive or vulgar
  • Threatening national security
  • Containing offensive or hateful content
  • Imitating official symbols
  • Containing references to tragedies or disturbing events

Section 11(4)(b) –

marks that are likely to deceive, if they: –

  • contain words “made/made in/imported from” or “exported from” a geographical place but in fact the goods are imported/exported from or made elsewhere; or
  • suggested official approval but without any actual endorsement.

Section 11(5)(a) –

use prohibited in Hong Kong by virtue of any law, if:

  • the use of the trade mark constitutes an offence under the PRC Law on Safeguarding National Security in the HKSAR and/or the Safeguarding National Security Ordinance.

Our firm could assist clients to assess the chance of refusal of the intended trade mark on the above grounds as well as other grounds before filing to avoid potential refusal of the marks.

3. Shortening the time of issuing hearing notice

Previously, IPD often took a year or more to schedule a hearing after the close of pleadings. However, in recent trends, IPD has significantly reduced the time required to issue a hearing notice, often scheduling hearings in less than a year. In some cases, hearing notices are issued within just one or two months.

This improvement is beneficial, as it allows parties involved in proceedings to anticipate a faster resolution of their cases, ensuring a more efficient legal process.

How We Can Help

As a Hong Kong law firm, we can serve as the client’s authorized agent in handling the registration of their IP rights, including the preparation and submission of the necessary IP forms to the IPD.  Additionally, we provide expert assistance in assessing the risk of trade mark refusal based on various legal grounds. By conducting this evaluation before filing, we help minimize the likelihood of rejection and ensure full compliance with applicable laws and regulations.

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.

The Legalities of Surrogacy: Complex Conceptions

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(This article was published in the March 2025 Issue of the Hong Kong Lawyer)

Surrogacy is generally known as the act wherein an individual agrees to become pregnant and give birth on behalf of another person or persons who will become the child’s legal parent(s) after birth. It is controversial because of various reasons, including the potential exploitation of vulnerable surrogates, lack of clarity with respect to child rights and the fact that it may be contrary to societal and/or religious values in certain societies. Questions which often arise include whether a woman has a right to make autonomous decisions about her own body and whether surrogacy would lead to the further objectification of children and/or women’s bodies, countered by the principle that reproduction is a basic human right.

Altruistic surrogacy is defined as surrogacy without monetary compensation (other than the payment of medical expenses), most likely done out of the goodness of the surrogate’s heart. On the other hand commercial surrogacy is defined as a surrogacy arrangement that involves the payment of money for services rendered as a surrogate.

Possible Parental Rights

When a child is born via surrogacy, it is entirely conceivable that the child has up to five types of individuals with varying and sometimes conflicting claims to parental rights – the sperm donor, the egg donor, the surrogate, the intended parents (if they were not the sperm donor and/or egg donor) and where divorce occurs, the step parents. The legal issues which arise with each type of individual and their parental rights are complex and often fraught with uncertainty.

Emotional and Psychological Factors

The surrogacy journey can be emotionally taxing for all parties involved. Intended parents may experience a range of emotions, from excitement to anxiety about the process and perhaps even a change of heart in extreme circumstances. Surrogates also face significant physical and emotional hurdles, including potential health complications during or after pregnancy, as well as the risk of forming an emotional bond with the child they are carrying. Awareness, open communication, counseling and robust institutional support systems are essential for societies to accommodate surrogacy arrangements from pre pregnancy to post birth.

Financial Considerations

The financial implications of surrogacy can be considerable, often ranging from tens of thousands to well over a few hundred thousand US dollars. Costs can include medical procedures, legal fees, agency fees and compensation for the surrogate. Many intended parents find themselves traversing a landscape where insurance coverage is limited, and financial planning becomes essential.

The Ethics of Surrogacy

There are many divergent points of view that highlight the complexities of this reproductive arrangement. Central to the discussion are the power dynamics which may emerge between wealthy intended parents and economically disadvantaged surrogates, raising concerns about exploitation and informed consent in commercial surrogacy agreements. The roles of surrogacy agencies and other brokers may create potential conflicts of interest, prioritising profit over the well-being of surrogates and even children. More recently, the ethical implications of genetic enhancement and selection further complicate the landscape, as they challenge notions of fairness and equity in reproduction. Moreover, medical practitioners must uphold their professional responsibilities to ensure that all parties are fully informed and supported, emphasising the need for ethical guidelines that prioritise the health and rights of surrogates and children while respecting the intentions of intended parents.

Legal Environment and Considerations

The legalities surrounding surrogacy can be complex and vary significantly by jurisdiction. In some countries, surrogacy is fully supported by the law, while in others, it remains highly regulated or even prohibited. Understanding these legal frameworks (which are often reflective of different societal values), is crucial for legal practitioners, would-be surrogates, intending parents and relevant health care providers.

In many jurisdictions, complex legalities beyond the actual surrogacy may not have been legislated as yet, such as rights of the child vis-a-vis immigration and citizenship when born abroad, their access to genetic/biological information, right to maintain a relationship with their surrogate mother as well as rights to other disclosure requirements.

Well drafted surrogacy agreements may provide for unforeseen circumstances such as prenatal testing decisions and potential conflicts, medical emergencies or even the termination of a pregnancy, but in many jurisdictions, surrogacy agreements are not enforceable. The results may be unpredictable in many surrogacy arrangements.

Australia

All Australian states prohibit commercial surrogacy, citing concerns about the exploitation of surrogates as well as parental rights and best interest of the child. Altruistic surrogacy is allowed, with some states being more restrictive than others. Reimbursement for verifiable, out-of-pocket expenses may be made where the expenses are directly associated with the surrogacy procedure, pregnancy or birth.

Pursuant to the  Ethical guidelines on the use of assisted reproductive technology in clinical practice and research 2017 (updated 2023), expenses which are allowed include the following:

  • medical and counselling costs, before, during, and after the pregnancy or birth;
  • travel and accommodation costs within Australia;
  • loss of earnings from unpaid leave;
  • insurance;
  • child care costs when needed to allow for attendance at appointments and procedures related to the surrogacy arrangement; and
  • legal advice.

The legal recognition of intended parents depends on the state where the surrogacy arrangement takes place. In the state of New South Wales, the Surrogacy Act 2010 stipulates that at birth, the surrogate is recognised as the birth mother of the child and if she is married or has a partner, that person is recognised as the other parent. The intended parents must then apply to the Supreme Court for a Parentage Order before they can be recognised as the legal parents.

Surrogacy arrangements made in New South Wales are not legally enforceable.

Canada

The federal Assisted Human Reproduction Act (“AHRA”) governs surrogacy in Canada, where only altruistic surrogacy is permitted. Compensation for expenses is permitted but commercial surrogacy is strictly prohibited. The AHRA does not affect the legality of any surrogacy agreement that has been signed in Canada, which must follow the law of the province where the agreement was signed.

Legally reimbursable items include:

  • ravel expenditures;
  • expenditures for the care of dependants or pets;
  • expenditures for counselling services;
  • expenditures for legal services and disbursements;
  • expenditures for obtaining any drug or device as defined in section 2 of the Food and Drugs Act;
  • expenditures for obtaining products/services that are provided or recommended in writing (and the cost of such recommendation) by an authorised person to assess, monitor and provide health and postpartum care to a pregnant woman;
  • expenditures for the services of a midwife/doula;
  • expenditures for groceries, excluding non-food items;
  • expenditures for maternity clothes;
  • expenditures for telecommunications;
  • expenditures for prenatal exercise classes;
  • expenditures related to the delivery;
  • expenditures for health, disability, travel, or life insurance coverage; and
  • expenditures for obtaining or confirming medical or other records.

The legal process through which intended parents obtain legal parental status varies by province. Pursuant to the Children’s Law Reform Act in the province of Ontario for example, intended parents establish parentage through a simple administrative process provided the surrogacy agreement was entered into prior to conception, each party received independent legal advice, there are no more than four intended parents and conception was achieved via assisted reproductive technology.

Hong Kong SAR

Pursuant to section 17 of the H (Cap. 561), Hong Kong prohibits commercial surrogacy arrangements. In altruistic arrangements, bona fide medical expenses arising from the pregnancy and the delivery of the child born via surrogacy are legally reimbursable.

To establish legal parentage, the intended parents may obtain a parental order under section 12 of the Parent and Child Ordinance (Cap. 429). Unfortunately only legally married heterosexual couples can apply. When considering the application, the court will retrospectively authorise and approve surrogacy expenses.

Where the intended parent or parents are not legally married heterosexual couples, the only option may be to seek judicial approval for the child to be privately adopted outside the Social Welfare Department. This limitation arises from Hong Kong’s current lack of recognition for same sex marriages.

Hong Kong’s regime is one where an altruistic arrangement with intended parents who are legally married to each other is the only legal pathway for surrogacy. Furthermore, surrogacy agreements are not enforceable in Hong Kong, making it a challenging jurisdiction for surrogacy arrangements.

United Kingdom

In the UK, surrogacy is regulated under the Surrogacy Arrangements Act 1985. Surrogates can be compensated for reasonable expenses, but surrogacy agreements cannot be enforced. Commercial surrogacy is prohibited.

There is no definition of what constitutes reasonable expenses – this has led to generous interpretations by the courts for allowable expenses, yet commercial surrogacy is strictly prohibited. The Law Reform Commission of England and Wales published a joint report with the Scottish Law Commission in 2023 that recommended clarifying categories of payments that intended parents will be permitted to make and conditions for intended parents to become legal parents upon the birth of a child born via surrogate.

At present, the surrogate is the child’s legal parent at birth in the UK. If the surrogate is married or has a partner, the spouse/partner will be the child’s other legal parent, unless they did not give their consent. Intended parents may apply for a parental order at the family court after the child’s birth to gain legal recognition as the parents but only if one of the intended parents is genetically related (i.e., the egg or sperm donor) to the child. If not, the only route to becoming legal parent(s) is adoption.

United States

In the U.S., surrogacy laws differ from state to state. States like California and Illinois have permissive regulations that support both altruistic and commercial surrogacy arrangements, often providing legal recognition of the intended parents as the child’s legal guardians. Conversely, Arizona’s Revised Statute § 25-218 prohibits surrogacy. In many other states, their legislatures have not yet legislated for or against surrogacy.

New York’s Family Court Act Chapter 686 Article 5-C allows for reimbursement and compensation for surrogates, enforceable surrogacy agreements and judgement of parentage prior to the child’s birth, which becomes effective upon the child’s birth.

This patchwork of laws often leads intended parents to “venue shop,” opting for states or regimes with more favorable legal conditions for surrogacy. But arranging for surrogacy in one venue and then taking the child to live in another venue may lead to a more complex route when the intended parent(s) seek to become legal parent(s) of the child.

Other Jurisdictions

Countries like India, Russia and Ukraine have become popular destinations for international commercial surrogacy due to their more permissive laws. However, intended parents must make themselves aware of the legal challenges they may face when they wish to return to their home country with a child born via surrogacy.

Conclusion

Both altruistic and commercial surrogacy offer a viable pathway for many individuals and couples hoping to create a family despite their financial, legal, physical and/or psychological obstacles. Navigating these complex landscapes requires careful consideration, maturity and professional planning. Understanding the specific laws and regulations governing surrogacy in various jurisdictions, alongside their associated costs and support systems, is essential for the intended parent(s).  

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.

Entering Senior Citizens’ Homes in Hong Kong: Legal and Contractual Considerations You Can’t Overlook

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On the 15th of April 2024, the Consumer Council published a critical report examining the standards, costs, and transparency of care homes in Hong Kong. While the findings highlighted several concerns such as hidden fees and inconsistent care standards, they also brought to light one of the issues underlying such concerns: vague contractual terms and families’ lack of awareness of the legal and financial complexities tied to choosing a residential care home.

Entering an care home, whether government-subsidized or private, is a significant decision that involves more than just evaluating sufficiency of facilities, staffing and services. The contractual terms of the agreement signed with the care home dictate everything from fees to care provisions and a resident’s rights. This is especially true for private care homes, where families often take on greater financial responsibility and need to be extra vigilant about what they’re agreeing to.

In this article, we will explore the key legal and contractual considerations that everyone should be aware of when selecting an care home in Hong Kong.

Licensing and Accreditation

Whether you’re considering a private or subsidized care home, the first step is to ensure that the facility is properly licensed. In Hong Kong, all Residential Care Homes for the Elderly (RCHEs) are regulated under the Residential Care Homes (Elderly Persons) Ordinance (Cap. 459), which establishes minimum standards for accommodation, staffing, and care.

Beyond licensing, consider whether the home is accredited by recognized bodies like the Hong Kong Accreditation Service (HKAS). Accreditation signifies adherence to stricter standards, which may translate to better care and safer environments.  As the Consumer Council noted, homes with accreditation are more likely to invest in continuous improvements.

Fees: Transparency Is Key

The report revealed that fees in private care homes could range dramatically, from $6,000 to over $80,000 per month. Yet, these figures often exclude additional costs for consumables, medical care, or even basics like air-conditioning.  It’s vital to scrutinize the contract for clarity on:

  • Base fees: Understand exactly what is covered in the monthly charges.
  • Additional charges: Common extras include medical escorts, special dietary needs, or incontinence supplies like diapers. These costs can add up quickly, so be sure to ask for a detailed list.
  • Refund and deposit policies: If a resident is hospitalized or chooses to leave the home early, will unused fees be refunded? Many contracts have strict rules—or none at all—around refunds, so this deserves close attention.
  • Fee increases: Look for clauses that permit fee adjustments. While cost of living increases are common, contracts should specify the notice period and the percentage increase allowed.

In private homes, families shoulder the full financial burden, making transparency on fees even more critical.

Care Services: Will the Home Meet Evolving Needs?

One of the Consumer Council’s key concerns was the limited flexibility in care homes to accommodate changes in residents’ health. Whether the home provides basic care, nursing care, or specialized dementia care, the contract should clearly outline the services available and what happens if care needs change over time.

For example:

  • Does the facility provide 24/7 nursing care?
  • What happens if the resident develops mobility issues or requires end-of-life care?
  • Will the home help arrange transfers to a higher-care facility if needed?

Private homes may offer more personalized care packages, but they often come at a significant cost. It’s essential to know in advance whether the care home can continue to meet your loved one’s needs or if they may require relocation later.

Termination Policies

Termination clauses vary widely between care homes, and the Council’s findings revealed a lack of consistency in how homes handle contract cancellations. Look for specifics on:

  • Voluntary termination: If you decide to leave the facility, how much notice is required? What are the refund policies?
  • Facility-initiated termination: Under what conditions can the home discharge a resident (e.g., inability to pay or health issues they can’t manage)?
  • Eviction procedures: These should align with consumer protection laws to prevent unfair or abrupt evictions.

Private homes, in particular, may have stricter terms that favor the facility, making it critical to review these clauses with care.

Dispute Resolution: What Are Your Options?

Many contracts include clauses that require disputes to be settled through arbitration or mediation rather than court proceedings. While these processes can be faster, they are also more expensive and may limit your ability to pursue legal action if necessary. Ensure the contract outlines a clear, fair, and transparent resolution process, and familiarize yourself with resources like the Hong Kong Consumer Council, which can mediate disputes and offer advice.

Resident Rights: Legal Protections to Look For

Under the Residential Care Homes (Elderly Persons) Ordinance, residents are entitled to basic rights such as privacy, dignity, and involvement in care decisions. Private care homes often market themselves as offering “premium” services, but these rights should never be compromised. When reviewing a contract, ensure it reflects commitments to:

  • Healthcare provision: The availability of on-site medical staff and emergency response systems.
  • Safety and hygiene: Policies for infection control, cleanliness, and regular health checks.

The Consumer Council also encouraged families to inquire about staff-to-resident ratios, as lower ratios often result in better care.

Data Privacy and Legal Guardianship

The Consumer Council emphasized the importance of safeguarding residents’ personal and medical information, particularly in private facilities where external services may be involved. Ensure the contract complies with the Personal Data (Privacy) Ordinance (Cap. 486) and includes clear guidelines on how data will be shared or used.

If the resident has a legal guardian or power of attorney, verify that the care home recognizes these arrangements and respects the decision-making authority of the appointed representative.

Conclusion: Be Informed, Be Protected

The Consumer Council’s report serves as a powerful reminder that entering an care home in Hong Kong is a decision with significant legal and financial implications.

If you would like to explore your options in this regard, please contact our Partner, Eunice Chiu （+852 2186 1885 / +852 9169 4356）.

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.

OLN “Legal Eagles” Take on the Peak Race 2025: Running for Freedom

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OLN is proud to announce that our team, the “Legal Eagles”, will participate in the Peak Race 2025 in Hong Kong! Set for Saturday, 22 March 2025, this inspiring race, organised by 24 Hour Race, aims to raise awareness and funds to combat human trafficking and modern-day slavery, while empowering youth and supporting at-risk children in Thailand.

OLN team is lacing up not just to race but to actively support the cause through fundraising efforts. This year, we will directly support The Freedom Story , an organisation dedicated to protecting vulnerable children in Thailand from trafficking and exploitation.

With your generous support, we can help fund initiatives that will create long-term, life-changing impact:

1. Educational scholarships

Keeping vulnerable children in school by covering tuition and school supplies.

2. Financial management training

Empowering families with the skills to manage resources and build financial stability.

3. Youth leadership camps

Equipping young leaders to educate their peers through anti-trafficking outreach programs.

4. Mentorship programs

Providing emotional support and guidance to children facing crisis situations.

Gordon Oldham, our Senior Partner and an avid ultramarathon runner, shared his enthusiasm: “I’m thrilled that OLN is supporting such a great initiative. As both a runner and organiser of numerous Hong Kong trail races, I’ve seen first-hand the immense dedication and effort that goes into making a race happen – especially for a meaningful cause. I’m proud to be part of it this year.”

How You Can Help

We invite you to stand with us in the fight against human trafficking. You can contribute by:

  1. Donating – Every contribution is tax-deductible and, big or small, makes a direct impact on a vulnerable child’s future.
  2. Spreading the word – Share our fundraising page with your friends, family, and colleagues to expand our reach.

If you wish to donate, click here.

OLN’s Commitment to Community

Our participation in the Peak Race 2025 is part of OLN’s broader dedication to corporate citizenship. Beyond the legal world, we dedicate ourselves to our community – whether it’s through providing pro bono legal services to the elderly via our partnerships with Helping Hand, SAGE and other organisations, or participating in environmental sustainability projects.

At OLN, we believe our responsibility extends beyond legal practice. We are committed to making a difference where it is needed most – supporting vulnerable communities and fostering positive change in Hong Kong and beyond.