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CEDB Released a Public Consultation Paper on Updating Hong Kong’s Copyright Regime on 24 November

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The Commerce and Economic Development Bureau of the Government of Hong Kong just released on 24 November 2021 a public consultation paper on updating Hong Kong’s copyright regime. 

This is brilliant news to copyright owners and fingers crossed with the passage of the new legislation! If you may wonder the meaning behind, the current Copyright Ordinance enacted in 1997 is considered badly obsolete and can barely cope with the rapid advancements and innovations in technology. Despite the Government’s deliberation to update the legislation initiated since 2006 with public consultations conducted,  two serious attempts to amend the Ordinance (The Copyright (Amendment) Bill 2011 and The Copyright (Amendment) Bill 2014) did not succeed due to filibustering by some members asserting the view that freedom of creativity or expression could possibly be compromised under the proposed legislative provisions.

The consultation paper described the legislative proposals in the 2014 Bill to be the result of years of deliberations of the Government, Legislative Council, copyright owners, online service providers and copyright users, representing the consensus and balance of interests of different stakeholders to enhance protection for copyright in the digital environment and combat large scale online piracy – which should be materialized without further delay.  

Key legislative proposals based on the 2014 Bill

A. Communication right – introduction of technology-neutral exclusive communication right for copyright owners to communicate their works to the public through any mode of electronic transmission in line with the international practice

B. Criminal liability – criminal sanctions introduced against infringers making unauthorised communication of copyright works to the public for profit or reward and with prejudice caused to the copyright owners

C. New copyright exceptions – for the education sector, libraries, museums, archives, temporary reproduction of copyright works by OSPs, and media shifting; and new fair dealing exceptions for the purposes of parody, satire, caricature and pastiche, commenting on current events, and use of quotation to facilitate expression of opinions or discussions in the online and traditional environment

D. Safe harbour provisions – limiting OSP’s liability for copyright infringements on their service platforms caused by subscribers as an incentive for OSPs to cooperate with copyright owners to combat online piracy

E. Additional damages in civil cases – empowering the court to award additional damages according to the circumstances with additional factors to assess including the unreasonable conduct of an infringer and likelihood of widespread circulation of infringing copies

Issues inviting public views

1. Should Hong Kong continue to maintain the current exhaustive approach by setting out all copyright exceptions based on specific purposes or circumstances?

2. Should Hong Kong introduce provisions to restrict the use of contracts to exclude or limit the application of statutory copyright exceptions? (currently is non-interference approach to contractual arrangements between owners and users)

3. Should Hong Kong introduce specific provisions to govern illicit streaming devices used for accessing unauthorized contents on the Internet, including set-top boxes and Apps? (Government’s current position is not to)

4. Should Hong Kong introduce a copyright-specific judicial site blocking mechanism? (Government’s current position is not to)

Issues to be considered for future legislative amendments
  • Extension of copyright term of protection
  • Introduction of specific copyright exceptions for text and data mining
  • AI and copyright

The consultation period is 3 months from 24 November 2021. We are more than happy to convey your thoughts to the Bureau or share our thoughts on issues you may have on copyright protection or circumstances that may put you at the risk of infringing someone else’s copyright.

The End of the “418 Rule”: What Employers in Hong Kong Need to Know About the New “417/468” Continuous Contract Requirement

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Introduction

For decades, whether an employee was regarded as employed under a “continuous contract” under the Employment Ordinance (Cap. 57) (“EO”) depended on the “418 rule”: the employee had to be employed continuously by the same employer for four weeks or more and work at least 18 hours in each week. Continuous contract status matters because it is the gateway to important statutory protections and benefits, including paid annual leave, statutory holiday pay, sickness allowance, maternity and paternity leave, severance payment and long service payment.

With effect from 18 January 2026, the “418 rule” has been replaced by a more flexible “417/468” framework. Under the new requirement, an employee will be regarded as employed under a “continuous contract” if they have been employed continuously by the same employer for four weeks or more and either: (i) worked at least 17 hours in each week; or (ii) where they worked less than 17 hours in any week, worked 68 hours or more in the four-week period comprising that week and the three weeks immediately preceding it. This article explains the new threshold, why the rolling four-week calculation matters, and which industries and working arrangements are likely to be most affected.

“Continuous Contract”

The practical concept and threshold of a “continuous contract” is fundamental to Hong Kong employment law. By virtue of satisfying this threshold, employees access a broad array of statutory protections and entitlements, subject in each case to the employee satisfying the applicable eligibility conditions for that particular benefit, including:-

  • Annual leave and statutory holidays;
  • Sickness allowance and maternity/paternity leave;
  • Severance payment and long service payment; and
  • Protection against unreasonable dismissal.

The New “Continuous Contract” Threshold: From “418” to “417/468”

A comparison of the old and new requirements is as follows:-

Definition of “continuous contract” under “418 rule”
(effective before 18 January 2026)		Definition of “continuous contract” under new “417/468 rule”
(effective on or after 18 January 2026)
Employee works 18 or more hours per week for four consecutive weeks.Employee works at least 17 hours in each week for four or more consecutive weeks; OR 
Where the employee works less than 17 hours in any week, the employee works 68 hours or more in the four-week period comprising that week and the three weeks immediately preceding that week. The 468 limb does not apply during the first three weeks of a new employment.

In particular, under “468 rule”, rather than measuring hours on a week-by-week basis, it looks at an employee’s aggregate working hours across a rolling four-week window. This makes it far harder for employers to sidestep the threshold by varying rosters from week to week. For illustration, an employee whose hours fluctuate between 10 and 22 hours per week may well qualify, even if they never consistently exceed 17 hours in any given week.

In particular, the “468 rule” is significant because it moves the analysis beyond a simple week-by-week threshold. Where an employee works less than 17 hours in a given week, employers must look at the employee’s aggregate working hours across that week and the three immediately preceding weeks. This makes fluctuating rosters more important: a shorter week will not necessarily prevent continuous contract status if the rolling four-week total reaches 68 hours, although the assessment remains fact-sensitive and the 468 limb will not assist during the first three weeks of a new employment.

Crucially, under section 3(2) of the EO, the burden of proving that an employment contract is not a continuous contract lies with the employer in the event of a dispute.

Impact on the Employment Landscape

The practical ramifications of this amendment are significant and broad-reaching.

Part-time, casual, seasonal and variable-hours workers are likely to be the primary beneficiaries. The sectors most directly affected are those with heavy reliance on shift-based or fluctuating staffing, including retail, catering, hospitality, food and beverage, entertainment, logistics, events and promotional work. Platform or gig-style arrangements may also require closer review where the underlying relationship is, in substance, employment rather than genuine self-employment.

Meanwhile, employers face a corresponding increase in compliance and administration obligations. Businesses that previously relied on the 18-hour weekly threshold, or rostered staff close to that threshold, should reassess their workforce structures, contracts, payroll rules and timekeeping systems. Key areas of review include:-

  • Employees newly qualifying as continuous contract employees may become entitled to statutory benefits, requiring payroll and benefits recalculation.
  • Employment contracts, staff handbooks and rostering policies that refer to the old “418 rule” or assume a fixed 18-hour weekly threshold should be reviewed and updated.
  • Given the combined “417/468” framework, employers should track both weekly hours and rolling four-week totals, and maintain robust timekeeping and payroll records to determine eligibility and support the employer’s position in any dispute.
  • Severance and long service exposure: As more workers qualify as continuous contract employees, employer exposure to severance payment and long service payment claims, as well as holiday, sickness and leave-related costs, may increase.

How can OLN help?

The replacement of the “418 rule” with the new “417/468” continuous contract requirement represents one of the most significant expansions of statutory employment protection in Hong Kong in recent years. For businesses with part-time, casual, seasonal, event-based or variable-hours staff, the implications are immediate and wide-ranging.

Our team at OLN can assist with workforce audits to identify employees who now qualify, or may soon qualify, as continuous contract employees; review and update employment contracts, staff handbooks and rostering practices to reflect the new threshold; and advise on statutory entitlements, payroll administration, record-keeping and dispute risk under the amended framework.

Should you have any questions, please feel free to contact us.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or legal advice of any kind 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 Rise of the Employer of Record in Hong Kong and How Businesses Can Leverage It

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Introduction

Hong Kong’s employment landscape is changing. The recent amendment to the Employment Ordinance (Cap. 57) (“EO”), which introduces a broader continuous contract threshold from 18 January 2026, is one of several developments that should prompt businesses to take a closer look at how they structure and manage their workforce. For many, that review may well lead them to an increasingly familiar solution: the Employer of Record.

The Employer of Record (“EOR”) model is not new, but its profile in Hong Kong has grown considerably in recent years. Fuelled by the rise of cross-border hiring, more flexible workforce models, and a steady expansion of statutory employment obligations, more businesses are turning to EOR arrangements to simplify the way they engage workers. The appeal is understandable. There are, however, risks that businesses should plan against.

The EOR Model

An EOR is a third-party entity that formally acts as the employer on record of workers on behalf of a client company. In a typical EOR arrangement, the EOR signs the employment contract and handles payroll, MPF enrolment and contributions, employer tax reporting and other employment administration, while the client company retains day-to-day operational control over the workers’ activities.

The tripartite EOR structure is, in essence, as follows:

  • The EOR employs the workers on paper and manages agreed compliance obligations;
  • The client company directs the workers’ daily tasks and business activities; and
  • The employees are formally contracted to the EOR but functionally serve the client.

The EOR model has found particular appeal among businesses seeking to expand into new markets without the delay and cost of establishing a local entity, as well as multinationals looking to centralise employment administration across jurisdictions.

The Benefits of EOR

In light of the new continuous contract framework, EOR arrangements offer a number of practical attractions for Hong Kong businesses.

  1. The EOR can take responsibility for monitoring evolving statutory requirements and managing outsourced compliance processes so that employment contracts, payroll systems and benefits structures reflect the applicable law.
  2. Businesses can engage talent quickly, without setting up a local entity and without having to build the full local employment administration infrastructure themselves. This can reduce costs and increase efficiency.
  3. The administrative burden on internal HR departments is also reduced. Payroll calculations, MPF enrolment and contributions, employer reporting to the Inland Revenue Department (“IRD”) under the salaries tax regime, and statutory leave tracking can all handled by the EOR.
  4. Companies considering a Hong Kong presence can hire locally on a trial basis through an EOR before committing to a formal corporate structure, allowing them to conduct market testing before committing capital and labour for the long term.

Key EOR Risks to Consider

Despite its commercial appeal, the EOR model carries meaningful legal and operational risks that businesses should evaluate carefully before proceeding.

1. Risk of Being Deemed the True Employer

Under Hong Kong law, the question of who is the “employer” for the purposes of the EO may turn on the substance of the relationship, not merely the label assigned to it. The courts and tribunals may examine the reality of the arrangement. If the client company:

  • exercises substantial control over the worker’s day-to-day activities;
  • provides the worker’s equipment, workspace, and tools;
  • integrates the worker into its own organisational structure; or
  • fails to maintain a meaningful distinction between its own staff and the EOR-engaged worker,

there is a risk that the client company may be found to be the worker’s true employer, depending on the facts, notwithstanding the contractual position with the EOR. This could expose the client to EO-related liabilities, including obligations relating to severance payment, statutory holiday pay, annual leave, sickness allowance and claims for unreasonable dismissal.

2. Employment Agency Regulations

The EOR model, if not properly structured, may also raise employment agency licensing issues. Employment agencies are regulated under the  EO and the Employment Agency Regulations (Cap. 57A), and employment agencies must generally be licensed by the Labour Department. An EOR that functions essentially as a broker, by introducing or placing workers with client companies without genuinely acting as the substantive employer, may risk being treated as an unlicensed employment agency, with attendant regulatory and criminal exposure.

3. MPF and Salaries Tax Obligations

Even where an EOR arrangement is properly structured, client companies should satisfy themselves that the EOR is enrolling eligible employees in an MPF scheme within the statutory framework, making timely and correct MPF contributions, and filing accurate employer returns and related IR56 forms with the IRD. The statutory obligation to make MPF contributions sits with the employer of record, but reputational and operational risks can flow back to the client if an EOR defaults on these obligations.

4. Permanent Establishment Risk

For overseas companies engaging workers in Hong Kong through an EOR, there may also be Hong Kong profits tax risk if the worker’s activities constitute a permanent establishment in Hong Kong or otherwise result in Hong Kong sourced profit for Profits Tax purposes, particularly if they involve entering into contracts on the company’s behalf. Businesses should take advice on this risk before deploying an EOR arrangement, particularly where the engaged workers exercise significant commercial discretion.

5. Continuity of Employment and the “417/468 Rule”

Under the new framework, businesses that rotate EOR-engaged workers through consecutive contracts must be vigilant. From 18 January 2026, an employee is regarded as employed under a continuous contract if the employee has been continuously employed by the same employer for four weeks or more and either works at least 17 hours in each week or, where the employee works less than 17 hours in a week, has worked 68 hours or more in the four-week period comprising that week and the preceding three weeks. The “468 Rule” does not apply to the first three weeks of a new employment, and attempts to structure arrangements to avoid statutory entitlements may create additional legal and reputational risk.

How can OLN help?

OLN has extensive experience advising businesses, from market entrants to established multinationals, on the full spectrum of employment issues in Hong Kong. Whether you are considering an EOR arrangement for the first time, reviewing an existing structure for compliance risk, or navigating the implications of the new continuous contract framework, our team can help you assess your exposure and structure your workforce arrangements on a sound legal footing.

Should you have any questions, please feel free to contact us.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or legal advice of any kind 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 Succession Guide – What Happens to Hong Kong Assets When a Mainland Entrepreneur Passes Away

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When a mainland Chinese entrepreneur dies, leaving assets in the Hong Kong SAR, the assets do not automatically transfer to family members. The Hong Kong SAR has its own legal system and probate process, which must be followed before assets can be accessed or distributed to the deceased’s heirs. This article briefly explains the Hong Kong SAR legal process to distribute a deceased’s assets.

First step: Are there assets in Hong Kong?

The first step would be to determine which assets fall within the legal jurisdiction of the Hong Kong SAR. These assets may include bank accounts held with Hong Kong banking institutions, shares held in Hong Kong companies, real property (real estate) held in Hong Kong and/or securities traded on the Hong Kong Stock Exchange. The administration of the above types of assets would be dealt with through the Hong Kong court process and Hong Kong law will generally govern Hong Kong real estate, regardless of the deceased’s nationality or place of residence.

The legal authority to deal with the deceased’s Hong Kong assets is granted by the High Court of Hong Kong either in the form of a grant of probate (if the deceased left a valid will naming an executor who is willing to act) or a type of letters of administration, if the deceased left no will, the will is invalid or no executor is able to act.

Did the deceased leave a Will?

If the deceased left a Will, the Hong Kong court will need to decide whether the Will is valid under Hong Kong law and whether it covers Hong Kong assets. Hong Kong recognises Wills executed in accordance with the law of the place of execution or the deceased’s domicile. If the Will was executed in the People’s Republic of China (“PRC”), issues that sometimes arise include the differences in formal requirements between the two jurisdictions, lack of clarity over asset coverage and the absence of an appointed executor. If an executor is named in the Will, the executor (usually with the help of his/her Hong Kong solicitor) applies for probate in Hong Kong.

What if the deceased left no Will or an invalid Will?

If the deceased left no Will or an invalid Will, this is deemed an intestacy and the deceased’s estate will be distributed in accordance with Hong Kong’s intestacy rules pursuant to the Intestates’ Estates Ordinance Cap 73.

Who are the heirs in an intestacy?

Very broadly speaking, the surviving spouse (with a fixed statutory legacy in specific situations) and children take priority and extended family members such as parents and siblings inherit only if closer relatives do not exist.  A suitable family member (often the surviving spouse or an adult child) applies for Letters of Administration in order to administer the estate.

What are the documents generally required of PRC heirs?

PRC heirs are typically required to present the following documentation – death certificate issued by mainland Chinese authorities, resident identity cards of the deceased and heirs, hukou registration records to prove family relationships, marriage or divorce documents if applicable and notarial certificates confirming identity and kinship. In practice, Hong Kong courts usually require these documents to be notarised by a notary public in the PRC and properly authenticated (for example, via current apostille/legalisation arrangements).

What if probate proceedings have already been completed in the PRC?

Even if probate proceedings have already been completed in the PRC, it is not possible to apply for recognition of these probate documents in Hong Kong. Unfortunately the PRC is not listed as a country under Hong Kong’s statutory resealing regime as the listed countries are all common law regimes. A fresh application in Hong Kong is required.

Are there estate duties and estate taxes in Hong Kong?

Estate duties have been abolished in Hong Kong for deaths occurring after 11 February 2006 and there have never been estate or inheritance taxes. However, tax issues may arise in the PRC and other applicable jurisdictions.

What are some practical challenges faced by PRC heirs?

As a result of the numerous complications mentioned above, some common challenges faced by PRC heirs include delays due to incomplete documentation, difficulty proving family relationships where hukou registration records differ from actual family relationships, translation (from Chinese to English) as well as notarisation requirements and disputes over the validity or interpretation of Wills (the latter complication is not unique to PRC heirs but occurs across all jurisdictions).

It is important to note that if the deceased was domiciled in the PRC, PRC succession law may be relevant in deciding who inherits movable assets in Hong Kong, although the Hong Kong court issues the grant and supervises the administration.

What is the expected timeline?

A straightforward probate application in Hong Kong takes a few months to complete. Complex cross-border estates take longer, particularly where there is no will, documents must be obtained from mainland authorities and/or heirs are in dispute about their entitlements.

Does planning ahead help?

For PRC citizens with assets in Hong Kong, advance planning can significantly reduce complications in the probate process. Many have opted to execute separate Hong Kong wills to cover their Hong Kong assets to streamline the legal process in Hong Kong, appointed executors familiar with Hong Kong laws and maintained clear records of bank accounts, shareholdings, property and other assets.

Conclusion

The passing of a loved one is one of the most difficult times in a person’s life. With the benefit of advance legal planning, heirs will be able to navigate the complicated process of probate more smoothly and avoid unnecessary stress during a time of immense grief. And with a properly drafted will, one can generally choose who should inherit one’s assets, without regard to fixed intestacy rules in Hong Kong.

In conclusion, it is advisable to seek professional legal advice if one’s estate involves Hong Kong assets.

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.

香港生殖科技 —— 法律框架、倫理與新興司法趨勢

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(本文發表於《Hong Kong Lawyer》香港律師會會刊 2026年8月刊。)

引言

Louise Joy Brown於1978年7月25日在曼徹斯特出生，是全球首位經體外受精（「IVF」）技術孕育的嬰兒。八年後，香港首位IVF嬰兒於1986年12月在跑馬地一家私家醫院誕生。其出生在當時極具爭議，以至其父母拒絕透露其本人及家人的身份，以及其出生日期。據《南華早報》報道，天主教會曾譴責該程序為「以人工手段創造生命」。

時至今日，據估計全球每小時誕生57名IVF嬰兒。多年來的技術進步使IVF程序日趨普及，安全性更高，成功率亦大幅提升。

與此同時，香港的總和生育率數十年來持續低於2.1的替代水平，並於2025年跌至歷史新低。香港特別行政區政府近期為扭轉這一趨勢所採取的措施，包括：向2023年10月25日至2026年10月24日期間出生的嬰兒發放20,000港元一次性現金獎勵、提高子女免稅額、為公共房屋推出「初生嬰兒家庭優先配屋計劃」、增加幼兒照顧中心、增加公共醫療系統內的IVF治療配額，以及為輔助生殖服務相關醫療費用提供新的稅務扣除。

2025年12月，《人類生殖科技（發牌）（修訂）規例2025》（2025年第160號法律公告）撤銷了此前對自用配子及胚胎儲存10年的法定期限限制。此項重大改革與現代國際規範接軌，並推進了生殖自主權。

另一備受討論的改革範疇，是更新《人類生殖科技條例》（第561章）（「HRTO」）。HRTO於2000年制定，是規管香港人類生殖科技（「RT」）程序的主要法例。現行HRTO實際上將RT程序（卵子冷凍除外）的使用限定於「婚姻當事人」。由於同性婚姻在香港法律下尚未獲得承認，RT程序的使用事實上僅限於不育的已婚異性戀夫婦。商業代孕亦受HRTO明文禁止。

主要法例

HRTO序言列明，該條例旨在「規管生殖科技程序，以及為研究及其他目的使用胚胎及配子；在任何守則中沒有相反明文規定的情況下，將生殖科技程序的提供局限於不育夫婦；規管代孕安排；設立人類生殖科技管理局；以及就附帶或相關事宜作出規定」。

監管機構及發牌

根據HRTO第5條，人類生殖科技管理局（「管理局」）是依法設立的法定機構，負責履行HRTO下的多項法定職能，包括發牌及政策相關職責。

定義

HRTO將生殖科技程序定義為：

「……協助或以人工方式促成人類生育的醫療、外科、產科或其他程序（不論是否向公眾或部分公眾提供），包括 ——

(a) 體外受精；

(b) 人工授精；

(c) 取得配子；

(d) 在體外操縱胚胎或配子；

(e) 根據第（2）（a）（ii）款發出的公告中指明屬生殖科技程序的程序；及

(f) 藉符合本定義的程序已達到或擬達到的性別選擇，

但不包括根據第（2）（b）（ii）款發出的公告中指明不屬生殖科技程序的程序。」

HRTO並未定義不育。序言中泛指將生殖科技程序局限於不育夫婦。世界衛生組織將不育定義為「男性或女性生殖系統的疾病，指在12個月或以上的定期無保護性行為後仍未能成功懷孕」，此定義在實際操作中獲普遍採用。

執業守則及專業標準

根據HRTO第8條，管理局須頒布及維持《生殖科技及胚胎研究執業守則》（「守則」），為RT服務提供者及胚胎研究人員訂立詳細指引。守則於2007年8月1日正式生效。

守則序言指出，守則雖為保障服務使用者的健康及利益、以及保護經RT出生的兒童的福祉提供指引及最低標準，但相關專業人員仍應遵守其本身專業的執業守則及職業道德，守則並不凌駕於此。

資格要求

HRTO第15（5）條限制RT程序只可向婚姻當事人提供。結合HRTO序言及守則第4.2段（均明確提及不育夫婦），一般而言，在實踐中只有不育的已婚夫婦方可使用RT程序，但以下情況除外：根據第15（6）條，代孕母親不受此限；以及根據第15（3）條及HRTO附表2所列明的情況，獲准為醫療目的進行胚胎性別選擇的夫婦（例如為避免嚴重性聯遺傳疾病）亦不受此限。

由於HRTO序言及守則第四章均訂明RT程序只應向不育夫婦提供，因此除極有限的情況外，一般不允許基於社交或非醫療原因進行RT程序。

特定排除及例外

單身人士、未婚同居異性戀伴侶及同性伴侶，均無資格接受RT程序，因為HRTO一般按現行法律詮釋，將治療限定於婚姻當事人（守則第4.1段附注12）。

在此框架下，HRTO允許若干嚴格界定的例外情況，例如第15（7）條允許在夫婦於配子或胚胎首次植入女方體內時已屬已婚的情況下，即使其後婚姻已告終結，仍可繼續進行RT程序。另一例外情況是為避免嚴重性聯遺傳疾病而進行的胚胎性別選擇。HRTO附表2（及其修訂）列明獲准進行胚胎性別選擇的性聯遺傳疾病。

雖然在香港依法獲准使用RT程序的人士似乎獲得了充分的保護和支持，但不符合現行法律框架者（如單身人士、未婚異性戀伴侶、同性伴侶），無論其生育狀況如何，以及面對香港令人憂慮的出生率，實際上仍被排除在外。

HRTO及守則一般將RT程序的提供限定於不育的已婚異性戀夫婦。在現行法例下，同性伴侶及單身人士被排除於絕大多數RT程序之外。

胚胎、配子及代孕的商業交易（買賣）均受禁止。因此，只允許以利他方式捐贈胚胎、配子及進行代孕安排，但根據HRTO第16及第17條，可就合理開支予以補償。守則附錄二訂明向捐贈者補償的指引。

新興司法趨勢

在立法進展緩慢之際，案例法正處於法律、演進中的倫理觀念與現行公共政策的交匯點。在Re A及另一人 HKCFI 1749；5 HKLRD 366（HCMP 1571/2018，區慶祥法官，2019年10月14日）一案中，法院延長了《父母與子女條例》（第429章）第12（2）條所訂的6個月法定時限，並追溯性批准了商業代孕費用，儘管商業代孕安排在香港屬違法，原因在於：（1）申請人出於善意行事，並無道德瑕疵或欺騙意圖；（2）相關費用並非嚴重失衡至有違公共政策；及（3）親子令的頒發符合兒童的終身福祉及法律身份的最佳利益。區慶祥法官在A及B訴E HKCFI 3143（HCMP 731/2023，區慶祥法官，2023年12月4日）一案中，沿用並進一步闡述了同一分析框架。

上述兩案，連同CS訴SW HKCFI 2326（HCMP 1731/2023，區慶祥法官，2024年9月25日）及HSC訴T；HSC訴D HKCFI 770（HCMP 706-707/2025，區慶祥法官，2026年2月2日），共同構成一批新興案例，顯示香港法院傾向頒發親子令並批准出於善意支付的商業代孕費用，且始終以兒童的終身福祉為首要考量。在後一案中，法院再次就兩宗在深圳與兩名代孕母親達成的口頭代孕安排，分別頒發親子令並批准商業代孕費用，並延長了《父母與子女條例》（第429章）第12（2）條所訂6個月法定時限。法院就兩名兒童的終身最佳利益進行了考量。委託父母並非蓄意違法，而是因未能獲得適當法律意見而不知法律規定，實屬不幸。

代孕及法定親子關係

代孕安排屬HRTO的規管範疇。HRTO序言訂明其職責為「在任何守則中沒有相反明文規定的情況下，將生殖科技程序的提供局限於不育夫婦」。根據守則第12.2（b）段，只有在該婚姻中的妻子無法將妊娠進行至足月、且沒有其他可行治療方案的情況下，方可提供RT程序。根據守則第12.7段，必須由跨專業團隊向代孕安排的所有各方（包括代孕母親的丈夫，如有）提供輔導。

代孕只在利他情況下方屬許可，不得以商業為基礎進行。根據HRTO第17條，禁止以商業為基礎進行代孕安排。守則第12.1段亦交叉引用了上述禁止規定。

根據HRTO第18條及守則第12.6段，任何代孕安排均不具法律約束力。代孕安排的所有各方均應被告知代孕安排不具法律約束力。

守則第12.8段訂明評估委託夫婦及代孕母親的適合性標準，須考慮其身體、精神及社會健康狀況。代孕母親須年滿21歲（守則第12.4段）。

《父母與子女條例》（第429章）第9條訂明，誕下嬰兒的女性在法律上視為該兒童的母親（如她已婚且其丈夫已表示同意，則其丈夫在法律上視為該兒童的父親），不受任何代孕協議的影響。第12（2）條規定，委託夫婦須在子女出生後六個月內向法院申請親子令，法院可在第12（1）至（7）款所有條件均獲符合的情況下頒發親子令。

在HC訴WYH HKCFI 1157（HCMC 3/2023，朱法官，2024年4月30日）一案中，雙方已婚但其後分居。法院須裁定的問題是，欠缺親子令或領養令（涉案兩名兒童均由在加州達成的商業代孕安排所生）是否構成家事法庭就「家庭兒童」的最佳利益作出命令的障礙。

法院裁定，《婚姻法律程序與財產條例》（第192章）第2條所訂「家庭兒童」的法定定義廣泛且自主，由商業代孕安排所生的兒童（即使未有親子令或領養令）亦符合該定義，從而賦予法院在離婚程序中就撫養權及贍養費作出命令的司法管轄權。

在CS訴SW HKCFI 2326（HCMP 1731/2023，區慶祥法官，2024年9月25日）一案中，法院裁定，兒童的最佳利益及其與事實上的父母確立終身安全法律身份的需要，凌駕於嚴重違反柬埔寨、泰國及香港有關商業代孕的法律，以及超出《父母與子女條例》（第429章）第12（2）條所訂法定時限逾4年的情況。

制裁及執法

違反HRTO可構成刑事罪行，並可導致罰款、監禁及監管制裁，包括吊銷執業者及研究人員的專業執照。

結語

香港有關RT的法律框架制定至今已逾四分之一個世紀。2025年12月撤銷配子及胚胎儲存10年期限，是值得歡迎的現代化改革，惟RT資格要求及使用的基本框架維持不變。

更重大的發展來自司法層面而非立法層面 —— 上述四宗具里程碑意義的案件確立了以下原則：法院將在委託父母出於善意行事（往往是不知悉其法律處境的情況下）、費用金額並非失衡，以及已考慮兒童最佳利益的情況下，頒發親子令並批准商業代孕費用。

HRTO所禁止的與法院願意予以規範化的之間的差距正在擴大。在這種不穩定法律環境下出生的兒童，理應獲得超越法院所能給予的法律確定性。香港創歷史新低的出生率，應促使經濟及社會政策向跟隨司法發展的包容性立法改革傾斜。在此之前，被拒於香港RT程序門外的人士，將繼續尋求海外解決方案。 

免責聲明：本文僅供參考。本文中的任何內容均不得詮釋為香港法律建議或向任何人提供的任何與此相關的法律建議。對於任何人因本文所含的内容而造成的任何損失和/或損害，高李嚴律師行不承擔任何責任。

New Rules, New Risks: Navigating China’s 2027 Trademark Law

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On 26 June 2026, the Standing Committee of the 14th National People’s Congress passed a landmark revision of the Trademark Law of the People’s Republic of China, which will come into force on 1 January 2027. This marks the first comprehensive overhaul since the law’s introduction in 1983, expanding the framework from 8 chapters and 73 articles to 9 chapters and 87 articles.

More significantly, the revision reflects a fundamental shift in legislative philosophy – from a system that primarily encouraged registration to one that emphasizes genuine use and market order. For brand owners operating in or entering China, the transition period leading up to 2027 is strategically important.

Key Legislative Shifts

The revised law introduces several structural changes that will directly impact trademark filing and enforcement strategies.

1. Stricter Controls on Malicious Filings

The new law explicitly prohibits trademark applications filed without intent to use and exceeding normal business needs. To enforce this, the authorities have introduced quantitative examination criteria in updated guidelines:

  • Applying for 50 or more trademarks within 12 months without a clear commercial rationale
  • Filing 10 or more trademarks across unrelated industries in a single batch
  • Targeting well-known names, internet trends, or generic industry terms

Applications meeting these thresholds may be rejected at the examination stage, and applicants risk being placed on regulatory watchlists. This signals a decisive move against trademark hoarding and bad-faith filings.

2. Increased Liability for Deceptive Use

The law now classifies misleading use of registered trademarks as a punishable offence. This includes branding strategies that rely on wordplay or presentation likely to confuse consumers.

Penalties may reach up to five times the illegal gains, capped at RMB 250,000. Failure to rectify violations within a prescribed period may result in revocation of the trademark registration.

3. Recognition of Digital Use

Trademark “use” is now expressly extended to online and digital environments. Acceptable evidence includes:

  • E-commerce listings and online storefronts
  • Social media accounts and promotional content
  • Livestreaming and digital marketing activities
  • NFTs and digital collectibles displaying the mark

This clarification significantly lowers evidentiary uncertainty for online businesses and aligns the law with modern commercial practices.

4. Expanded Protection for Unregistered Well-Known Marks

Foreign brand owners entering China may benefit from enhanced protection even prior to registration. The revised law allows recognition of well-known trademark status, which can be invoked to support invalidation or opposition actions against bad-faith filings across different classes.

Enhanced Regulatory Oversight

The revised law also strengthens enforcement mechanisms and imposes greater compliance obligations.

1. Proactive Revocation for Non-Use

Authorities are now empowered to initiate revocation actions against trademarks that have not been used for three consecutive years, without requiring a third-party challenge. This increases the risk of maintaining defensive or unused registrations.

2. Earlier Evidence Cut-Off

The evidentiary window for proving use has shifted to the three years preceding the alleged infringement, rather than the commencement of legal proceedings. This limits the effectiveness of last-minute or “token” use.

3. Shortened Opposition Period

The opposition period has been reduced from three months to two months, requiring more efficient trademark monitoring and faster decision-making by brand owners.

4. Increased Liability for Trademark Agencies

Trademark agencies that knowingly assist in bad-faith filings may face administrative penalties, including suspension or revocation of their business licences. This is likely to improve overall filing quality and professional accountability.

New Types of Protection and Procedural Changes

The revision also introduces protections for emerging forms of branding and tightens procedural strategies.

  • Dynamic trademarks, including animated logos and sequential marks, are now explicitly recognised
  • Limitations have been placed on delaying tactics in examination and litigation, reducing opportunities for procedural abuse
Practical Implications for Brand Owners

The 2027 Trademark Law signals a transition from a volume-driven filing strategy to one focused on substantiated commercial use. Businesses should:

  • Review existing portfolios to identify unused or vulnerable marks
  • Ensure consistent and well-documented use, particularly in digital channels
  • Reassess filing strategies to avoid excessive or unjustified applications
  • Strengthen monitoring systems to meet shorter opposition timelines

For example, a company that previously filed broad defensive applications across multiple unrelated classes may now face rejection or regulatory scrutiny. A more targeted, use-based filing strategy supported by evidence will be essential.

Conclusion

China’s revised Trademark Law represents a decisive move toward a more disciplined and use-oriented trademark system. The emphasis is no longer on securing as many registrations as possible, but on demonstrating genuine commercial use and maintaining orderly competition.

Brand owners who proactively adapt their strategies – by aligning registrations with actual business activities and strengthening evidence of use – will be better positioned to protect and enforce their rights in this evolving legal landscape.

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.

Family Offices in Hong Kong: Tax Concessions, Re-domiciliation, and Proposed 2026 Reform

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Hong Kong stands out as a premier destination for family offices, offering a unique blend of business-friendly policies, robust legal frameworks, and strategic advantages.

1. Business-Friendly Tax Regime

Hong Kong imposes low and simple taxes with no VAT, capital gains, dividend, or inheritance taxes. As at June 2026, Hong Kong holds 58 comprehensive avoidance of double taxation agreements, with another 16 under negotiation.

2. Robust Legal System

The city operates under a Common Law framework, providing strong rule of law and investor protection.

3. World-Class Financial Services

As a leading global hub for private banking, asset management and professional advisory services, Hong Kong offers tailored solutions for HNWIs and families.

4. Skilled Talent Pool

Hong Kong is home to a highly skilled, multilingual workforce.

5. Government Support

The Hong Kong government actively supports family offices through initiatives like FamilyOfficeHK under InvestHK and tax concessions for single-family offices.

6. Strategic Location

Hong Kong serves as a gateway to Mainland China and the Asia-Pacific region.

Re-Domiciliation of Family Offices

As of May 2025, non-Hong Kong incorporated companies, including family offices, can re-domicile to Hong Kong under a new statutory regime. This allows family offices to relocate their operations while retaining their legal identity and continuity. The streamlined process involves an application to the Companies Registry, with approvals typically granted within two weeks.

Key highlights:

  • The family office retains all assets, rights, obligations, and legal standing post-transfer
  • The family office obtains the same rights as family offices incorporated in Hong Kong
  • A fixed application fee (HK$6,050 electronically / HK$6,725 in hard copy)
  • Upon approval, the family office becomes a Hong Kong-incorporated entity and must deregister in its original jurisdiction within 120 days

Regulatory and tax implications:

  • Tax continuity is preserved – profits tax applies only to income sourced in Hong Kong
  • Relief and credits are available to avoid double taxation during transition
  • No stamp duty is triggered by re-domiciliation

Tax Concessions for Family-owned Investment Holding Vehicles (FIHVs)

Hong Kong’s Inland Revenue (Amendment) (Tax Concessions for Family-owned Investment Holding Vehicles) Ordinance 2023 introduced a 0% profits tax concession for qualifying FIHVs.

Who qualifies:

  • ≥ 95% beneficial interest held, in aggregate, by one or more than one member of the family (charities ≤ 25%, outsiders ≤ 5%)
  • Normally managed and controlled in Hong Kong, outsourcing is permissible
  • Holds ≥ HK$240 million specified assets (shares, stocks, bonds, debentures, etc.)
  • Carries on all core income-generating activities in Hong Kong with ≥ 2 qualified full-time staff and ≥ HK$2 million local operating spend
  • Not a business undertaking

What’s covered:

  • Transaction in specified assets (qualifying transactions): trading securities, FX, private-company shares, derivatives, etc.
  • Transactions incidental to the carrying out of qualifying transactions (receipts capped at 5% of total receipts)

Practical steps to obtain tax certainty:

  1. Map ownership to confirm ≥ 95% family control (with any charity/unrelated shareholding within limits).
  2. Elect for the concession – once, in writing – before filing the first relevant tax return.
  3. Verify substance annually: head-count, spend, and asset NAV.
  4. Monitor transactions for the 5% incidental threshold and private-company anti-avoidance triggers.
  5. Maintain documentation (family tree, group chart, management agreements, NAV calculations) ready for audit or advance-ruling submission.

Legislative Update: 2026 Preferential Tax Regimes Bill

  • On 12 June 2026, Hong Kong gazetted the Inland Revenue (Amendment) (Preferential Tax Regimes for Funds, Family-owned Investment Holding Vehicles and Carried Interest) Bill 2026.
  • The Bill proposes to expand Hong Kong’s preferential tax regimes for:
    • funds;
    • Family-owned Investment Holding Vehicles;
    • carried interest.
  • Expanded qualifying asset classes
    • The 0% profits tax concession would be expanded to cover additional asset classes, including:
      • digital assets;
      • gold and other precious metals;
      • specified commodities;
      • carbon credits;
      • private credit.
  • Broader eligible fund structures
    • Eligibility would be extended beyond traditional open-ended fund structures to include:
      • certain “fund-of-one” structures;
      • wholly-owned investment vehicles;
      • pension funds;
      • charity funds.
  • Carried interest tax relief
    • The Bill would enhance tax relief for performance-linked returns, including carried interest, for private equity and venture capital funds.
    • This is intended to strengthen Hong Kong’s competitiveness as a private capital and asset management hub.
  • Removal of 5% incidental threshold
    • The existing draft memo states that the concession covers transactions in specified assets and that receipts from incidental transactions are capped at 5% of total receipts.
    • The Bill proposes to remove this 5% incidental threshold, giving family offices greater flexibility in treasury, cash management and interest-earning activities.
  • Interaction with non-tax incentives
    • Hong Kong’s Capital Investment Entrant Scheme provides a residency pathway for individuals making a qualifying HK$30 million investment, including at least HK$3 million into a government-managed investment portfolio.
    • The scheme may also allow family members to be included, facilitating relocation alongside the family office structure.

Anti-Avoidance Measures

Hong Kong has implemented anti-avoidance measures to ensure that tax concessions are not abused. These measures include tests for immovable property, holding periods, and control and short-term asset tests.

Anti-Avoidance Measures

With its favourable tax regime, robust legal system, world-class financial services, skilled talent pool, and strong government support, Hong Kong is the ideal location for family office. Whether you are looking to establish a new family office or re-domicile an existing one, Hong Kong offers the perfect environment for long-term wealth planning and growth. Please contact us for further 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.