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香港 – 內地判決相互強制執行機制系列文章

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Under the “one country two systems” principle governing the relationship between the Hong Kong Special Administrative Region (“HKSAR”) and Mainland China (“PRC”), increasingly more mutual recognition and enforcement of judgments regimes have been put into place across different areas of the law. This series explores the latest developments of such regimes.

In part 1 of the series, we start with the regime that comes closest to home to individuals and companies engaged in cross-border corporate and commercial transactions: reciprocal recognition and enforcement of civil and commercial judgments.

In subsequent parts of the series, we will explore the cross-border enforcement of judgments in arbitration, insolvency/bankruptcy, and matrimonial proceedings.

Part 1: Update on Reciprocal Enforcement of Civil and Commercial Judgments

It has almost been a year since the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap 645) (the “New Regime”) came into force, superseding the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap 597) (the “MJREO”) which only applies to PRC judgments rendered before 29 January 2024. This article serves as a refresher on the differences between the New Regime and the MJREO, then explores how the HKSAR Courts have interpreted or will likely interpret the more liberal approach offered by the New Regime.

The Basics

Here is a chart comparing the more stringent criteria under the MJREO and the more relaxed requirements under the New Regime.

RequirementMJREONew Regime 
1. PRC Court giving the judgment must be:– the Supreme People’s Court;
– a Higher People’s Court;
– an Intermediate People’s Court;
– a recognized Primary People’s Court, i.e. the Courts listed in Schedule 1 of the MJREO.		any PRC Court
2. Nature of Judgment capable of being recognizedmonetary judgments only– monetary and non-monetary judgments that are civil and commercial in nature;
– declaratory relief;
– orders for specific performance;
– orders for compensation and damages arising from criminal proceedings;
– intellectual property judgments  

included judgments: given in proceedings brought in respect of:
– a copyright or related right; – a trade mark;
– a geographical indication; 
– an industrial design;
– a patent;
– a lay-out design (topography) of integrated circuit;
– a right to protect undisclosed information;
– a right enjoyed by a person in respect of a new plant variety under Article 123 of the Civil Code of the PRC or under the Plant Varieties Protection Ordinance (Cap 490)  

excluded judgments:
– given in a tortious dispute over an infringement of an invention patent or utility model patent;
– given for a determination of the license fee rate of a standard-essential patent.
3. Other excluded judgments (besides those relating to intellectual property rights – see 2 above)– Judgments in insolvency, debt restructuring, and bankruptcy cases (there is separate legislation dealing with the recognition/enforcement of judgments in insolvency and bankruptcy proceedings, to be discussed in another part of the series);
– Judgments in certain arbitration matters (concerning the validity of arbitration agreements, setting aside arbitral awards and for recognition/enforcement of PRC arbitral awards) (there is separate legislation dealing with the recognition/enforcement of arbitral awards, to be discussed in another part of the series);
– anti-suit injunctions;
– interim relief (e.g. interlocutory injunctions);
– judgments in matrimonial cases (there is separate legislation dealing with the recognition/enforcement of judgments given in matrimonial cases, to be discussed in another part of the series);
– judgments concerning the administration or distribution of estates;
– judgments in certain maritime cases;
– judgments in certain administrative cases.		Same.
4. Finality of judgment– the judgment was given by the Supreme People’s Court;
– the judgment was a judgment of the first instance given by a Higher People’s Court, an Intermediate People’s Court or a recognized Primary People’s Court, and no appeal is allowed or the appeal period under PRC law has expired;
– the judgment was a judgment of the second instance (unless the judgment was given by a recognized Primary Court);
– the judgment was given in a retrial by a Court higher in level than the Court whose judgment gave rise to the retrial.
– Deemed final if the PRC Court issues a certificate certifying that the judgment is final and enforceable in the PRC (can be proven to be otherwise).		Same – basically if the judgment was given by the Supreme People’s Court or the appeal period has expired and the case is not under a retrial, it is considered final.
5. Exclusive Jurisdiction Clause (or Choice of PRC Court Agreement)Parties must have agreed in writing that disputes arising from the underlying contractual documents shall be resolved exclusively in the PRC Courts.The dispute resolution clause written in the underlying contractual documents can provide for the non-exclusive jurisdiction of the PRC Court.
6. Actual jurisdiction to decide the case and enforceability in the PRCThe PRC Court must have actual jurisdiction to hear the case:
– Defendant must have an actual or a representative presence in the PRC Court accepted the proceedings.
– The PRC must be the place where the infringing conduct took place (e.g. breach of the disputed contract, committal of a tortious act).
– An actual connection exists between the dispute and the PRC.  

The judgment must also be enforceable in the PRC.		Same.
7. Grounds to set aside registrationBreach of procedural fairness and natural justice principles, e.g. defendant was not given a reasonable opportunity to be heard, defendant was not given notice.  

Manifestly incompatible with the public policy of HKSAR.  

Registered judgment was obtained by fraud.  

Case was accepted by the PRC Court after proceedings in respect of the same cause of action between the same parties were commenced in the HKSAR.  

A HKSAR Court has already given judgment on the same cause of action between the same parties and the judgment has already been recognized/enforced in HKSAR.		Same.

Impact of the New Regime and how the HKSAR Courts have interpreted its more liberal requirements

As the plaintiff’s registration application to the HKSAR Court is done on an ex parte basis, i.e. without the need to notify the defendant, only those cases in which the defendant challenged the Registration Order (by way of an application to set aside) will be reported. Making the landscape more uncertain is the fact that the vast majority of reported cases deal with the MJREO (the New Regime has come into existence for less than a year).

However, certain cases recently decided under the MJREO indicate that certain restrictions under the MJREO will continue to pose a problem for plaintiffs seeking registration under the new regime.

Challenging the dispute resolution clause in favour of the PRC Court vs challenging the underlying merits of PRC Judgment

The decision of the High Court (Court of First Instance) in 信达澳亚基金管理有限公司 v 宜华生科技股份有限公司  [2024] HKCFI 1957 (date of decision: 30 July 2024) demonstrates that although the merits of the underlying claim as decided by the PRC Court are not allowed to be questioned by the HKSAR Court, in considering whether a jurisdiction clause in favour of the PRC Court exists, the HKSAR Court will indirectly look into the “merits of the claim” in certain circumstances.

In this case, the Plaintiff purchased corporate bonds from the plaintiff company and the transaction was governed by a set of contractual documents: (a) a bond document issued to the investing public (募集说明书); (b) a bond trustee agreement entered into between the Plaintiff company and the trustee (受托管理协议); and (c) Rules of Bondholders’ Meetings. Besides the 1st Defendant, the rest of the Defendants (the 2nd to 5th Defendants) acted as guarantors. The PRC Court issued a judgment pinning liability on all the guarantor Defendants.

Upon engaging in a detailed analysis of the contractual framework, the HKSAR Court decided that the clause relied upon by the Plaintiff as the clause providing jurisdiction to the PRC Court derived from the bond trustee agreement but since the Plaintiff was not a party to the agreement, the Plaintiff should not be allowed to benefit from the jurisdiction clause, leaving the Plaintiff with no jurisdiction clause to rely upon and one of the key requirements of the MJREO unsatisfied. Further, the Court interpreted the contractual framework as conferring status solely on the trustee to sue the Plaintiff only AFTER due authorization has been obtained in bondholders’ meetings.

This case is a good reminder that in certain circumstances, the HKSAR Courts, in assessing whether certain requirements for recognition have been met, will indirectly look into the underlying merits of the case as part of the exercise of assessing if the “apparently-technical” requirements have been met.

As the exclusivity requirement is not in contention in the action, the decision serves as a precedent for cases decided under the New Regime (which does not require exclusivity of jurisdiction but does require that there be a clear jurisdiction clause naming the PRC Courts as the forum for dispute resolution).

What constitutes a final judgment and the treatment of PRC enforcement judgments (执行令)

It is common for plaintiffs in the PRC to seek an enforcement order (执行令) upon the rendering of a judgment granting damages and unlike in the HKSAR, the enforcement order is assigned a different case number. In some cases, plaintiffs will sue the borrower, obtain judgment against the borrower only, then start enforcement actions against both the borrower and the guarantor when the guarantor was never made a defendant in the original action.

Beware that the enforcement action has fully completed against the borrower before applying for registration of the judgment in the HKSAR Courts against the guarantor.

In 湖州升帮金融服務有限公司 v 杭邑生活科技股份有限公司 [2024] HKCFI 1464 (date of decision: 13 June 2024), the HKSAR Court set aside the Registration Order made against a guarantor not only on the basis that the judgment does not name a fixed or liquidated sum, but also because the enforcement process against the borrowers has not yet completed, and therefore the judgment is not considered to be of a final nature.

There are some cases where in the PRC enforcement proceedings, the PRC plaintiff joins the shareholder or a subsidiary of the defendant as a party. Under HKSAR law, this act would be a violation of the principle that the corporate veil cannot be pierced, i.e. the shareholder is a separate legal entity that is distinct and separate from the company held. The author questions whether the enforcement order granted by the PRC Court in this situation will be considered a “judgment” under the MJREO or the New Regime because in the HKSAR, one form of enforcement order is the garnishee order which is not considered to be a judgment (let alone a money judgment under the MJREO)[1]. Further, would piercing the corporate veil in this manner be contrary to public policy, making the judgment liable to be set aside?

Difficulty in proving exclusivity of jurisdiction

Although the New Regime does not require the presence of a clause in the contractual document giving jurisdiction to the PRC Court to resolve disputes exclusively, it does require clear language granting jurisdiction even if it is not exclusive. In Beijing Renji Real Estate Development Group Co Ltd v Zhu Min [2022] HKCFI 1027, much time and fees of expert witnesses were spent interpreting the following clause:

“Disputes arising from the performance of this agreement by the partners shall be resolved through negotiation. Where the partners are unwilling to resolve the disputes through negotiation or a consensus fails to be reached through negotiation, a lawsuit may be filed in the People’s Court where this contract is signed in accordance with the law.” [emphasis added]

「各合夥人履行本協議所發生的事蹟，應通過協商解決。合夥人不願通過協商解決或者通過協商不能達成一致意見的，可依法向本合同簽署地人民法院起訴。」

In the end, the HKSAR Court decided that the word, “may” (可) is permissive and does not confer exclusivity. This case serves as a reminder to contractual parties to seek legal advice on the wording of the dispute resolution/jurisdiction clause in the contract if the option of enforcing a judgment across the border is important.

Litigation is becoming increasingly complex due to the growing number of cross-border transactions and the vastly different legal systems in place in each jurisdiction. When in doubt, whether at the contract-signing stage or when a dispute arises, please seek the assistance of a legal professional.

If you would like our assistance, please do not hesitate to contact our Disputes Partner, Eunice Chiu, for a confidential discussion (+852 9169 4356 / +852 2186 1885).

[1] See 吳仲程 v 梁耀 [2016] HKEC 400 (CFI) (date of judgment: 16 February 2016) where despite the presence of an enforcement order in the PRC, the Plaintiff sought to register only the original judgment.

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.

凍卵：世界各地卵母細胞冷凍保存的法律現況

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(這篇文章發表在 2025年一月香港律師會會刊)

冷凍卵子在後疫情時代已成為主流。在疫情期間，婚禮與懷孕都被推遲，這對數百萬正值生育年齡的婦女而言尤其重要。美國國家醫學圖書館的一份報告指出，女性在出生後，一生中只能生產約一至二百萬個卵母細胞（未成熟卵子）。當女性年屆 51 歲（更年期的平均年齡）時，卵子的品質和數量都會下降，大約只剩下一千個卵子。在生育的黃金時期凍結優質的卵子以備日後使用，今時今日被認為是在未完全準備好懷孕和生育時實際可行的方法。

一些美國公司十多年前已開始提供冷凍卵子作為員工福利。《衛報》早在 2014 年就報導，矽谷公司為了吸引和留住頂尖女性人才，為員工支付冷凍卵子的費用。耶魯大學在2018年發表的一項有關冷凍卵子的研究發現，85% 的女性都是單身，其中許多人表示沒有合適的伴侶。婦女可能尚未準備好懷孕或生育的原因眾多，包括事業抱負、家庭狀況、經濟考量、個人環境和健康狀況。

因健康狀況以外的原因而冷凍卵子，稱為一般「社會原因」冷凍卵子。

司法管轄區的差異與法律考量

並非每個司法管轄區都容許因社會原因（即非健康狀況）進行卵母細胞冷凍（凍卵）而不受限制。以下是一些司法管轄區的法律狀況回顧：

澳洲為冷凍卵子提供自由的法律制度，容許基於社會原因進行凍卵。事實上，在 1984年，澳洲是第一個利用冷凍卵子生下嬰兒的國家。雖然沒有特定的年齡限制，但鼓勵婦女在 35 歲之前冷凍卵子，以提高日後生產的成功率。儲存年限取決於各州的法律，在新南威爾士州和維多利亞州一般為 10 年。維多利亞州的《2008 年輔助生殖治療法案》（第31A 條）允許其患者審查小組在有合理理由或小組認為有特殊情況時，延長卵子和精子的 10 年儲存期限。《1991 年人類生殖科技法》也規定西澳洲的儲存期限為 10 年，若有「特殊理由」則允許延長。費用也因州而異，但有些健康保險計劃可能會承保部分費用。

在加拿大，《輔助人類生殖法案》規範輔助人類生殖技術，其中包括卵子冷凍。加拿大衛生部的精子和卵子安全法規指導文件允許卵子儲存長達 10 年。儘管有些診所不向非加拿大公民提供服務，但對年齡或婚姻狀況沒有限制。社會原因冷凍卵子（稱為選擇性冷凍卵子）不在政府醫療保健的承保範圍內。

法國最近才透過法國《公共衛生法》第 L2141條，容許所有29至37歲的婦女進行社會原因冷凍卵子，不論其婚姻狀況或性取向。儘管這項自由化措施容許婦女在生育選擇上有更多自主權，但批評者譴責現實情況，因為冷凍卵子在私人領域是被禁止的，而且在公共衛生系統中，光是初次預約醫生就可能需要等待超過兩年，這實際上剝奪了 35 歲以上婦女冷凍卵子的權利，儘管《世界報》在 2022 年報導，法國每四對育齡夫婦中就有一對有不孕不育問題。

在香港特別行政區，冷凍卵子沒有年齡限制；然而，根據《生殖科技及胚胎研究實務守則》，婦女必須已合法結婚，才能使用體外授精技術令卵子受精。由於香港尚未在法律上承認同性婚姻，同性婚姻中的婦女和單身婦女無法獲得冷凍卵子後的服務從而懷孕生產。《人類生殖科技條例》成立了人類生殖科技管理局，負責監督現已過時的 2002 年實務守則。冷凍卵子最長可儲存 10 年，由於卵子品質下降，建議婦女在 35 歲前冷凍卵子，此儲存限制試圖將潛在懷孕的年齡限制在 45 歲。這個法律框架說明香港限制性的婚姻法和生育權之間的複雜關係。

愛爾蘭的《2024 年健康（輔助人類生殖）法》已於 2024 年 7 月 2 日該國的總統簽署。儘管冷凍卵子必須由私人出資，但對社會原因冷凍卵子並無限制。當醫療治療影響到生育能力時，公共醫療保健可能會支付冷凍卵子的費用。卵子最長可儲存 10 年，之後若要延長儲存期限，必須重新取得同意。輔助人類生殖管理局有權考慮和決定延長儲存期限的申請。

2023 年， 新加坡的《2020 年保健服務法》管理輔助生殖服務，根據《2023年保健服務（輔助生殖服務）規例》，出於社會原因冷凍卵子自由，但僅限於 21 歲至 38 歲以下的婦女。然而，若非因社會原因而進行冷凍卵子，則婦女必須已合法結婚，且其丈夫必須同意該程序，這代表了非常保守的社會價值觀。社會原因冷凍卵子並不包括在該國的Medisave（所有有工作的公民和永久居民都要供款的強制性醫療儲蓄帳戶）中，但其他生殖服務可能包括在內。

自 2006 年起，西班牙對生殖技術採取漸進式的處理方式。第 14/2006號《輔助生育技術法》允許因社會原因冷凍卵子，無年齡限制，無時間限制。該法律框架支持婦女作出生育選擇的權利，使西班牙成為歐洲最熱門的凍卵目的地之一。但是，社會原因冷凍卵子並不包括在政府醫療保健系統的範圍內，必須由私人出資。

在英國，婦女可以基於社會原因冷凍她們的卵子。《1990 年人類受精與胚胎學法案》規範這種做法，婦女可將卵子儲存長達 10 年，並可每隔 10年更新同意書，最長可儲存55年。雖然沒有特定的年齡限制，但英國的人類受精與胚胎學管理局建議 38歲以下的婦女一般可以冷凍 7至 14 個卵子。然而，獲得公共資金冷凍卵子的機會只保留給面對可能影響生育能力治療的人，英格蘭、北愛爾蘭、蘇格蘭和威爾斯之間的標準各不相同。社會原因凍卵必須由私人出資，而且不受任何價格規定的限制。

在美國，每個州各自規管冷凍卵子。在紐約州，自由的法律允許因社會原因冷凍卵子，無年齡限制，無婚姻狀況限制。根據俗稱的「試管嬰兒法」，保險公司必須依法承保冷凍卵子（以及冷凍卵子後的三個試管嬰兒週期）。

其他考慮

成本可能是決定冷凍卵子的重要因素。整個過程（從最初的諮詢到治療前的測試、刺激卵巢、觸發注射、監測、卵母細胞擷取、卵母細胞評估到冷凍保存，再加上隨後的儲存費用）通常非常昂貴。財務負擔可能相當大，而且在許多司法管轄區（甚或大多數），社會原因凍卵不在公共醫療保健的承保範圍之內，也不在私人保險計劃的償付範圍之內。為了在成本低、安全標準高且卵母細胞解凍成功率高的地區進行手術，越來越多人選擇地點。

總結

冷凍卵子的法律問題在不同司法管轄區有很大差異，應該引導婦女決定何時何地進行冷凍卵子手術。了解這些差異以及其他重要因素，如成本、臨床成功率、可用的支持系統和正在進行的輔助生殖技術服務（如體外受精、代孕）的可及性，包括監管它們的具體法律至關重要。全面了解這些因素，對考慮以凍卵作為其生育計劃的人來說，是非常重要的。

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。

患者自主權的新紀元：《維持生命治療的預作決定條例草案》賦予的新權利

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2024年11月20日，香港立法會通過了《維持生命治療的預作決定條例草案》，並於2024年11月24日刊憲。《條例草案》將在經過18個月的緩衝期後，於2026年5月正式生效。這項條例引入了重大變革，使個人在可能因精神或身體狀況無法自行作出醫療決定的情況下，能夠事先決定其醫療治療方式。

《條例草案》賦予個人訂立預設醫療指示（Advance Medical Directives，簡稱AMD）的權利，使其能夠預先作出具法律約束力的醫療決定。這包括在特定情況下拒絕接受如機械通氣、心肺復甦術（CPR）或人工營養及水分補給等生命維持治療。此外，患者亦有權選擇「不作心肺復甦術指示」（Do Not Attempt Cardiopulmonary Resuscitation，簡稱DNACPR），讓患者有權利拒絕心肺復甦。

本文闡述了《條例草案》引入的新權利，並概述了個人如何採取步驟行使這些權利。

ADVANCE MEDICAL DIRECTIVE (AMD) 預設醫療指示（AMD）

預設醫療指示（Advance Medical Directive，簡稱AMD）是一份具法律約束力的文件，允許個人指示醫護人員在特定情況下不提供生命維持治療，例如當其處於末期病況、持續植物人狀態或不可逆昏迷時。

可以拒絕的生命維持治療的類別：

  • 醫療機械通氣
  • 心肺復甦術（CPR）
  • 人工營養及水分補給（如經導管餵食）

步驟 1：確認資格

  • 年滿18歲或以上
  • 具備精神能力，能就生命維持治療作出決定
  • 在訂立AMD時，在醫生和律師的判斷下,不受外界或第三者的不當影響

步驟 2：選擇拒絕的治療

  • 決定要拒絕哪些生命維持治療，例如：

– 機械通氣

– 心肺復甦術（CPR）

– 人工營養及水分補给

步驟 3：填寫法定表格

  • AMD必須以書面形式訂立，並使用法定表格。表格需簽署並由至少兩名證人見證。
  • 一名證人必須是註冊醫生（Registered Medical Practitioner，簡稱RMP），以確認您具備精神能力並理解決定的後果。
  • 證人不得是您遺產的受益人。

步驟 4：數碼存檔

完成AMD後，數碼副本將安全地存放於專用電子系統中（計劃整合至由醫務衛生局管理、目前正分階段開發的電子健康記錄平台 eHealth），確保醫護人員在需要時能夠查閱您的AMD。

步驟 5：撤銷

如果您改變主意，可以通過以下方式撤銷您的AMD，只要您仍具備精神能力：

  • 口頭聲明您的撤銷意圖
  • 提供書面聲明
  • 銷毀原始文件

「不作心肺復甦術」指示（DNACPR）

《條例草案》亦賦予個人權利，可訂立「不作心肺復甦術指示」（Do Not Attempt Cardiopulmonary Resuscitation，簡稱DNACPR）。該指示明確要求醫護人員在患者發生心肺停止時，不進行心肺復甦術（CPR）。

如果您希望選擇DNACPR指示，可以通過以下方式開始程序：

選項 1：通過預設醫療指示（AMD）：如果您已訂立AMD，您可以在其中包含拒絕CPR的指示，這相當於發出了DNACPR指示。

選項 2：醫學判定：當醫生判定CPR在您的情況下適當或無效時，醫生可以基於醫學建議發出DNACPR指示。

選項 3：明確要求：如果您希望主動提出DNACPR指示，必須通過填寫法定表格以書面形式確認，並由醫護人員記錄，確保其與您的意願和健康狀況一致。

緊記： DNACPR指示需由兩名註冊醫生（Registered Medical Practitioners，簡稱RMPs）確認，其中至少一名必須是專科醫生。

《維持生命治療的預作決定條例草案》標誌著個人在醫療決策自主權方面的一次重大轉變。通過允許患者訂立預設醫療指示（AMD）和選擇不作心肺復甦術指示（DNACPR），該條例賦予個人提前作出重要治療決策的權利，確保即使在未來喪失表達能力的情況下，其意願仍能得到尊重。

儘管該法案要到 2026 年 5 月才會生效，但個人應考慮在此過渡期間的選擇。

如果您想了解更多關於這方面的保障，請聯絡我們的合夥人，趙君宜律師（+852 2186 1885 / +852 9169 4356）。

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內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。

Cyber Resilience Assessment Framework Introduced for Insurers in Hong Kong

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Following consultation with the insurance industry, on 11 December 2024 the Insurance Authority published a revised Guideline on Cybersecurity (Revised GL20). It takes effect on 1 January, 2025, introducing a Cyber Resilience Assessment Framework (CRAF or Framework) for insurers.

What Insurers Need to Know

The Framework applies (with limited exceptions) to the authorised insurers in relation to the business they carry on in or from Hong Kong. The provisions do not apply to captive, marine mutual, and special purpose insurers, Lloyd’s and insurers that have ceased underwriting or accepting business and are in run-off. All other provisions of the revised GL20 apply to all authorised insurers except for captive and marine mutual insurers.

The Framework requires insurers to evaluate inherent risk and the maturity of their controls against the prescribed control principles. The Framework’s three step approach is:

– Step One: the insurer conducts an inherent risk assessment.

– Step Two: the insurer conducts a cybersecurity maturity assessment.

– Step Three: the insurer makes a submission to the Insurance Authority on assessment results and proposed remedial measures.

What Insurers Need to Do, Generally

Important aspects of GL 20 require insurers to demonstrate a robust cybersecurity strategy and framework.  The requirements include:

1. Insurer’s board of directors to endorse the cybersecurity strategy and framework (CSF). In doing so it should ensure:

a. There are clearly defined roles and responsibilities including reporting lines and escalation procedures.

b. It should cultivate a strong level of awareness of and commitment to cybersecurity.

c. Risk appetite and tolerances are well defined.

d. This requires a complete risk assessment to identify risks and assess mitigating measures.It has oversight of CSF design and its implementation and effectiveness.

e. Where a designated management team of appropriately qualified individuals are tasked to assist the board, both board and team need to ensure the CSF is updated continuously.

2. Insurers are to include objectives and staff and system user competencies in the CSF, implement continuous monitoring and review the CSF periodically – annually, or more frequently if a material event occurs such as an incident or new system deployment.

3. Insurers are to have a well-developed cybersecurity incident response plan.

What insurers need to do regarding the Framework

Important actions to be implemented by insurers under CRAF include:

1. Conduct assessments:

a. An inherent risk assessment is to be conducted in accordance with the Inherent Risk Assessment Matrix. This is designed to identify the insurer’s rating on a three-tiered system:

i. High – extensive adoption of technologies over numerous delivery channels

ii. Medium – adoption of some complex new technologies

iii. Low or not applicable if appropriate – few emerging technologies are adopted

b. A cybersecurity maturity assessment is to be conducted in accordance with the Cybersecurity Maturity Assessment Matrix – having regard to Governance, Identification, Protection, Detection, Response and Recovery, Situational Awareness and Third-Party Risk Management. If an insurer wishes to adopt an alternative cybersecurity assessment framework, for example, the framework adopted by the organisation elsewhere or a framework previously used, it must be comparable to the Framework and meet all required conditions.

2. Make appointments:

a. an Assessor is to be appointed, with appropriate skills and qualifications (having regard to the inherent risk rating). When assessing cybersecurity controls, the Assessor should determine the sampling size and approach, taking a risk-based approach. Samples may be limited to the preceding 6 months if the assessment is being conducted for the first time. Otherwise, a 12 months period should be used.

b. If necessary, a Validator with the prescribed qualifications, is to be appointed.

3. Make submissions to the Insurance Authority:

a. For insurers with a high inherent risk rating the results of their assessments are to be submitted within 12 months from the effective date of CRAF.

b. For insurers with a low or medium inherent risk rating the results of their assessments are to be submitted within 18 months from the effective date of CRAF.

Thereafter, submissions are to be made at least every three years or more frequently (annually) or upon a major change to business or technologies.

4. Ensure the insurer’s Chief Executive or a senior officer (i.e. a key persons in control function) and the Assessor and/or Validator responsible for conducting Assessment review and approve the assessment.

Conclusion:

The insurance industry faces significant cyber risk as a first party issue, in its supply chain and in its insurance portfolios. GL20 is a valuable tool for insurers to measure, implement and enhance their cyber governance, systems, controls and resilience on a continuous basis.

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.

From Claims to Chains: The High Price of Overstating Your Losses in a Statement of Damages

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Introduction

In personal injury claims, the plaintiff is required to sign a statement of truth to verify the truth of the facts stated in a Statement of Damages. The potential consequences of overstating one’s losses are highlighted in the case of Zurich Insurance Company Limited v Chan Man Fu [2024] HKDC 1615.

Background

This case revolves around a committal application by an insurance company against a plaintiff in the underlying personal injury proceedings.

The respondent, Chan Man Fu, was involved in a traffic accident on 12 November 2018. Following the accident, Chan filed a personal injury claim against another driver whose motor insurer was the applicant in this case. At the time of the accident, Chan was represented by T.S. Tong & Co., with Tam as the handling solicitor, appointed by the Legal Aid Department.

Under the Statement of Damages dated 13 October 2022, Chan claimed a monthly income of HK$45,000 which includes his alleged earnings from two jobs: a freelance job at a cemetery and a part-time taxi driver job. The total amount of pre-judgment and post-judgment loss of earnings claimed by Chan come up to more than HK$5 million. The Statement of Damages included a statement of truth translated by Tam and signed by the respondent before Tam, confirming the accuracy and truthfulness of the information provided.

Key Evidence Suggested Chan Had No Income

Contrary to Chan’s declared income in the Statement of Damages, various documents disclosed by Chan during the personal injury proceedings revealed that Chan had no income at all during the relevant period:-

  1. An Annual Statement of Earnings and Property Acquired dated 3 November 2018 (which was only nine days prior to the traffic accident) as signed by Chan, showed Chan had declared no income, listing only Comprehensive Social Security Assistance (CSSA) of HK$8,678;
  2. In the Annual Statement of Earnings and Property Acquired filed for the period of 3 October 2018 to 3 October 2019, Chan also declared no income other than CSSA of HK$8,928;
  3. In an application for the Traffic Accident Victims Assistance Scheme submitted by Chan himself in April 2019, Chan described himself as a self-employed taxi driver who was only familiarizing himself with the roads and had not taken any order or earned any income.

In face of the overwhelming evidence that Chan was lying about his income, Chan attempted to shift the blame on his solicitors by alleging that there was misunderstanding between him and his solicitors in that the income stated in the Statement of Damages was only referring to his potential income and not his actual income at the time of the accident. Chan also alleged that he was asked to sign the statement of truth (which Chan alleged Tam for claiming it was in draft form) first before the solicitors had explained the importance of the statement of truth and consequences of giving false statement (which Chan admitted was at least done after the signed the document). Chan also said that when he told Tam some statements in the Statement of Damages were incorrect, Tam allegedly said, “it does not matter, we can revise it [the Statement of Damages] later.”

The court finds Chan’s explanation implausible, as Chan did not insist on correcting the Statement of Damages even after being told about the serious consequences that can following the making of false statement. This remained the case long after the Statement of Damages is filed. Chan also failed to summon Tam to give evidence at the hearing nor adduce any evidence from Tam in support of his account of events.

Judgment

After considering the evidence above, the District Court Judge found Chan guilty of making false statements in his Statement of Damages. The court stressed that the evidence overwhelmingly demonstrated that Chan had knowingly or recklessly made false declarations about his income. The judge highlighted that Chan’s actions were a blatant attempt to mislead the court and secure financial benefits fraudulently.

Chan was eventually sentenced to 21 days of imprisonment for contempt of court. Additionally, he was ordered to pay the costs of the applicant on an indemnity basis, with counsel certificate.

Key Takeaways

This case highlights two key reminders in respect of signing of statements of truth in legal documents:

  1. Honesty is Paramount: Claimants must provide truthful information in legal declarations. False statements can lead to severe legal consequences, including imprisonment, penalties, and adverse legal costs orders.
  2. Verification of Claims: Before signing statements of truth, claimants should ensure that all claims and damages sought are accurate and supported by concrete evidence. Even if they are legally represented, claimants are ultimately responsible for the information they provide. They should fully understand the contents and implications of any legal documents before signing.

The case of Zurich Insurance Company Limited v Chan Man Fu underscores the critical importance of honesty and evidence in personal injury claims. Claimants must be diligent in ensuring the accuracy of their statements and be prepared to substantiate their claims with verifiable evidence. This case serves as a stark warning that the legal consequences of making false statements can be dire and far-reaching, affecting not the claimant’s chance of success in a personal injury action but also his potential exposure to imprisonment and monetary.

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 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.

What You Need to Know before commencing Personal Injuries Action – Importance of Compliance with Pre-Action Protocol in Practice Direction 18.1

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Introduction

Before parties commence a personal injury proceedings in the Court, parties are required to adhere to, amongst others, the Pre-Action Protocol in Practice Direction 18.1 (“PD 18.1”). The importance of abiding to the Pre-Action Protocol is highlighted in the decision of Mak Shiu Cheung v Luk Man Tai [2023] HKDC 1801.

Facts of the case

This case concerns a traffic accident case, the facts of which are straightforward: the vehicle that the Plaintiff drove on was hit by the Defendant’s vehicle and the Plaintiff sustained personal injuries as a result.  

On 2 May 2023, the Plaintiff’s solicitors issued a Letter of Claim as per PD 18.1 to the Defendant (“Letter of Claim”). However, the Letter of Claim (1) did not disclose the fact that there has been an Employees’ Compensation Action already commenced on behalf of the Plaintiff in respect of the accident; and (2) did not disclose documents relating to the issue of quantum such as medical reports and records as well as the Plaintiff’s earning records such as payrolls and tax returns.

The Defendant replied to the Letter of Claim on 11 May 2023, which was within one month after the Letter of Claim was sent to the Defendant. In the reply letter, the Defendant requested for documents and information such as the Plaintiff’s payroll records and all documents related to the Employees’ Compensation Action (“Reply Letter”).

The Plaintiff’s Solicitors did not respond to the Reply Letter and instead commenced the proceedings by issuing the Writ, filing and serving the Statement of Claim and Statement of Damages around 3.5 months later on 22 August 2023.

The Defendant took out a Summons on 7 September 2023 (the “Summons”), asking for:-

  • Stay of proceedings of 3 months from the date of order (“Issue 1”);
  • Plaintiff to make discovery of documents to the Defendant as required under paragraph 66 of PD 18.1 and the Reply Letter and comply with PD 18.1 as to constructive communication and engagement of a single joint expert (“Issue 2”);
  • Plaintiff to be disallowed of the costs of preparation of the Statement of Claim and Statement of Damages (“Issue 3”); and
  • Costs of the present application be to the Defendant (“Issue 4”).

Ruling of the Court

There is no dispute as to Issue 1 and Issue 3 as the Plaintiff conceded and agreed to waive the costs for the preparation of the Statement of Claim and Statement of Damages and to stay the proceedings for a period of 3 months.

The real dispute is on Issue 2 and Issue 4.

Regarding Issue 2, the Plaintiff argued that it was not necessary to take out the Summons and that the Plaintiff had to commence a legal proceedings because, amongst others, the Defendant failed to give a constructive reply in their Reply Letter as to whether the insurer of the Defendant will admit liability and whether there will be third party which may be at fault and that the Plaintiff would be time-barred if the legal proceedings was not commenced.

The Court found for the Defendant, stating that:-

  • The Plaintiff failed to contain all the basic information and documents specified in PD 18.1 in his Letter of Claim, particularly there is a lack of particulars regarding the Employees’ Compensation Action and failure to disclose the relevant quantum documents;
  • The Plaintiff’s solicitors is the solicitors on record for both the Personal Injuries Action and Employees’ Compensation Action and therefore this is not a case where the Plaintiff does not have knowledge on the Employees’ Compensation Action;
  • This is not a case where the Plaintiff was unaware of the existence of quantum documents such as medical reports and records and income proof as these documents were filed in the list of documents in the Employees’ Compensation Action prior to the issuance of the Letter of Claim of the Personal Injuries Action;
  • This is also not a case where such quantum documents can be obtained by the Defendant by other means;
  • Admission of liability is not a prerequisite for an initial reply to be amounted to a “constructive reply”;
  • The current proceedings most likely could have been avoided if the Plaintiff had complied with the Pre-Action Protocol; and
  • Even so, the Plaintiff failed to comply with PD 18.1 as it had not served the Writ and Statement of Claim along with other documents such as statement of facts and finding of guilt, documents on post-accident earnings, pre-accident earnings, statement by the Plaintiff and other eye-witnesses when they were available and were not served under the Pre-Action Protocol.

The Court repeatedly emphasized that the importance of strict compliance to the Pre-Action Protocol in PD 18.1. The rationale behind the Pre-Action Protocol in PD 18.1 is to encourage early settlement of the matter in order to save time and costs for parties and the Court. The burden lies with the Plaintiff to include and disclose the basic information and documents specified in Appendix A and Schedule A of PD 18.1. The Court highlighted that any half-hearted and half-baked attempt to purportedly comply with the Pre-Action Protocol would not be tolerated by the Court and a simple “oversight” will not generally be accepted. Any unnecessary costs incurred or wasted would result in adverse cost consequences and even a wasted costs order (i.e. an adverse costs order made to penalize a party’s improper conduct).

As to costs (Issue 4), the Court suggested that the Defendant had good grounds to ask for a wasted costs order against the Plaintiff or Plaintiff’s solicitors and costs on an indemnity basis. However, in view of Defendant’s concession, the Court only ordered for a disallowance of costs on the Plaintiff for preparation of the Statement of Claim and Statement of Damages and the costs of and occasioned by the application be to the Defendant on a party-and-party basis.

Key Takeaways

In a personal injury claim, the plaintiff is required to adhere and ensure compliance to the Pre-Action Protocol in PD 18.1 to provide the requested documents and information to the defendant to facilitate the defendant’s investigation to the matter and for achieving early settlement between the parties. Failure to comply with the Pre-Action Protocol would lead to costs consequence and even a wasted costs order.

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 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.