Stevenson, Wong & Co. is proud to have been shortlisted as a finalist in 12 categories at the 19th Annual Asian Legal Business (ALB) Hong Kong Law Awards 2020.

Nominations include:

• BDO Award Matrimonial and Family Law Firm of the Year
• Civil Litigation Law Firm of the Year
• Criminal Litigation Law Firm of the Year
• Dispute Resolution Boutique Law Firm of the Year
• Labour and Employment Law Firm of the Year
• Private Wealth Law Firm of the Year
• Real Estate Law Firm of the Year
• Regulation and Investigations Law Firm of the Year
• Tax and Trusts Law Firm of the Year
• Transactional Boutique Law Firm of the Year
• Dispute Resolution Lawyer of the Year- Ms. Heidi Chui
• Woman Lawyer of the Year (Law Firm)- Ms. Heidi Chui

The Hong Kong Law Awards is the biggest and longest-running awards presented by ALB. The awards aim to pay tribute to the outstanding performance of private practitioners and in-house teams from Hong Kong and the region. Results will be announced at the award ceremony on 27 November 2020.

Please click here to view the full list of finalists.

For further information, please contact our Mr. Willy Cheng, Mr. Hank Lo or Ms. Catherine Por.

(中文) 2020年9月17日下午，本所合伙人，诉讼及争议解决部主管徐凯怡律师受Legal Plus邀请，担任「Legal Plus 意见领袖线上论坛：国际仲裁意见领袖线上论坛」 (Legal Plus Leaders Web-forums: International Arbitration Leaders Web-forum) 演说嘉宾。

本次线上论坛由Legal Plus主办，徐律师与来自亚洲、欧洲和中东地区的法律从业者、企业法总等参会人士分享如何运用内地与香港仲裁互助保全安排，最大化地收回债权利益 (Maximizing Recovery Through the Use of PRC-Hong Kong Interim Measures Arrangement in International Arbitration)。

如阁下想了解更多详情，请联络本所合伙人徐凯怡律师 (heidi.chui@sw-hk.com)。

Recent efforts for the testing and tracing of COVID-19 have raised growing concerns over data protection and personal privacy in the wake of the global pandemic. The aim of these measures is to help us navigate the difficult so that we can return to normal life as soon as possible, but at what cost? With reference to several media statements and responses issued by the Privacy Commissioner for Personal Data, Hong Kong (the “Privacy Commissioner”) since the outbreak of the COVID-19 pandemic, this article attempts to summarise what the Personal Data (Privacy) Ordinance (the “PDPO”) expects when it comes to balancing privacy right and public health and safety.

PDPO at a glance

The PDPO is applicable to both the private and the public sectors. The general position is that all data users shall comply with the six Data Protection Principles (“DPP”) when handling personal data:

1. Collection Purpose & Means
2. Accuracy & Retention
3. Use
4. Security
5. Openness
6. Data Access & Correction

Privacy vs. health and life

While data privacy is an important right, the interests protected under the PDPO have to be balanced against other important rights or public interest. The PDPO provides a number of exemptions from some compliance requirements under particular circumstances. When it comes to compelling public health concern, the following are applicable:

• Section 59 of the PDPO provides that situations involving health concern relating to the interests of the public may be exempt from the restrictions on the use of data; and
• “Right to life” of individuals, as set out in (i) Article 2 of Part II of the Hong Kong Bill of Rights Ordinance and (ii) Article 6 of the International Covenant on Civil and Political Rights (ICCPR), means that every human being has the inherent right to life. This right is absolute and precedes other countervailing interests, including privacy right.

Privacy issues considered

1. Mandatory quarantine measures

Location data of persons under quarantine would be collected by the Government so as to monitor whether they are complying with the quarantine conditions. Prior to the collection of such data and in accordance with DPP1, the purpose and manner of collection will be explained to the persons under quarantine and their consents will be obtained for access to their relevant personal data and certain information to be transmitted from their mobile devices (e.g. data involved in the use of video calls).

The Privacy Commissioner also brought to the public’s attention on section 59(1) of the PDPO, which provides an exemption for DPP3, i.e. use of data, and states that in circumstances where the application of the restrictions on the use of data would be likely to cause serious harm to the physical or mental health of the data subject or any other individual, the data user may disclose personal data relating to the physical or mental health of the data subject to a third party without the consent of the data subject.

2. Universal community testing programme

Personal data (including names, Hong Kong Identity Card numbers / birth registration numbers and local mobile phone numbers) will be collected under the programme. The use of such personal data is subject to the consent of the participants and is consistent with the principles of purpose specification and use limitation. Personal data will be handled on a “need-to-know” basis and erased one month after completion of the programme.

3. The use of information on social media for tracking potential carriers of COVID-19

Though the general rule is that personal data obtained from the social media is also regulated by the PDPO, it is subject to competing rights or interests such as the right to life. In accordance with section 59(2) of the PDPO, where the application of the restrictions on the use of data would be likely to cause serious harm to the physical or mental health of the data subject or any other individual, personal data relating to the identity or location of the data subject may be disclosed to a third party without the consent of the data subject. Therefore, if persons are suspected of having close contacts with infected persons, it would be in the public interest to closely monitor their whereabouts, including the venues and the persons that they have visited and contacted, with the aim to control further spread of COVID-19 in the community.

There are sufficient legal and justifiable bases on which the Government may collect and use information obtainable offline or online with the aid of devices, applications, software or super computers with a view to tracking potential COVID-19 carriers or patients in the interests of both the individuals concerned and the public.

4. Temperature collection at work

Employers have legal and corporate responsibility to protect the health of its employees and visitors that it is generally justifiable for employers to collect temperature measurements or limited medical symptoms of COVID-19 information of employees and visitors solely for the purposes of protecting the health of those individuals. Employers should spell out to their employees how the data collected will be handled. A self-reporting system is preferred to an across-the-board mandatory system where health data is collected indiscriminately.

It is reasonable and justifiable for employers to collect temperature measurements or medical condition of employees and visitors. Employers can require employees to complete declaration on personal health data as long as the notification requirement under the PDPO (by providing a Personal Information Collection Statement (PICS) to inform employees of the data collected and the purposes, and the classes of persons to whom their data may be transferred) is complied with. In accordance with section 59 of the PDPO, employers can disclose the identity, health and location data of individuals to the Government or health authorities solely for the purposes of tracking down and treating the infected and tracing their close contacts when pressing needs arise.

5. Work-from-home arrangements

Personal data protection should not hinder the work-from-home arrangements, but employers and employees should exercise extra caution because of the transfer and use of documents and data away from the professionally managed work environment.

Whilst the employers should put into place information systems to ensure secure transmission of data from work to home, the employees should be vigilant about the security of internet connection to prevent data leakage.

6. Temperature/personal data collection at premises

The Privacy Commissioner has pointed out that collection of personal data and/or temperature data by owners of premises is justifiable. They, however, should endeavour to raise the transparency and interpretability of the use of the personal data obtained. Again, the Privacy Commissioner pointed out that privacy right is not an absolute right and the right to life and public interest precede it. Any personal data collected should be necessary, appropriate and proportionate.

To comply with the DPPs, the owners of premises should ensure visitors are informed of the purpose of data collection and let them to decide whether to allow the collection of their biometric data. If visitors refuse to provide information, the owners of premises may refuse entry to protect the health of its staff and others.

Conclusion

Facing the pandemic, it is important to bear in mind that personal data privacy has not been neglected altogether. However, data protection principles should not hinder measures taken to fight COVID-19. The measures undertaken by the Government in balancing privacy right and public health needs have been endorsed by the Privacy Commissioner. Business owners and individuals should continue to observe the DPPs as far as practicable and display best efforts in complying with the requirements under the PDPO.

For more information or advice on privacy issues, please contact our Terence Lau or Elly Woo.

This newsletter is for information purpose only. Its content does not constitute legal advice and shall not be treated as such. Stevenson, Wong & Co. will not be liable to you in respect of any special, indirect or consequential loss or damage.

We are delighted to announce that our firm has once again been recognised in 13 practice areas/sectors in Asialaw Profiles 2021. This is the 4th consecutive year that Stevenson, Wong & Co. has been listed in Asialaw Profiles.

About Stevenson, Wong & Co.

Founded in 1978, Stevenson, Wong & Co. is a forward-looking, full-service law firm with over 170 experienced lawyers and staff. As the associated firm with one of the nation’s largest full-service law firms, AllBright Law Offices, and one of the founding members of INTERLAW, Stevenson, Wong & Co. connects China to the world and supports clients facing a variety of business and legal issues with effective solutions.

About Asialaw Profiles

Asialaw Profile provides a guide to Asia-Pacific’s leading domestic and regional law firms. It is researched, written and edited by a team of journalists based in the region and a good reference for both the legal industry and businesses.

Please contact Mr. Willy Cheng, Mr. Hank Lo or Ms. Catherine Por for any enquiries or further information.

Our Partner and head of Litigation and Disputes Resolution Department, Ms. Heidi Chui, has been recognized as a Distinguished Practitioner in Dispute Resolution by Asialaw Leading Lawyers for 2 consecutive years.

Lawyers who have been recognised as Distinguished Practitioner are highly regarded by their peers and possess a strong record and positive client feedback.

Our partner Heidi commented: “I am truly honoured to be recognized by Asialaw Profiles again. I would like to thank our clients for their support and my team for their hard work in the past year. Our team will continue to assist our clients and provide timely solutions to resolve problems encountered by them.”

About Heidi Chui

Heidi is the head of Litigation and Dispute Resolution Department and Banking and Finance Department. She has served as the internal legal advisor of several Chinese banks.

Heidi specializes in commercial litigation, arbitration, insolvency, restructuring, banking and finance, employment law and regulatory enforcement. She has extensive international and cross-border experiences in advising liquidators, receivers, official receivers, creditors and other professionals in charge of insolvency and bankruptcy matters in relation to debt restructuring and cross-border asset tracing. She also acts for banks, borrowers, insurance companies, property management companies, funds, listed companies and financial institutions.

As an extensive legal author and conference speaker, Heidi is frequently invited to share her experiences and insights at different legal talks and seminars. She is the co-author of The Hong Kong Encyclopaedia of Forms and Precedents – Insurance Volume and Hong Kong Chapter of International Insurance Law and Regulation on Thomson Reuters.

Heidi is also an Arbitrator (FCIArb), Mediator, China Appointed Attesting Officer and Civil Celebrant of Marriages.

About Asialaw Leading Lawyers

Asialaw Leading Lawyers identifies the leading individuals in the region, providing an essential source of information for corporate executives, in-house counsel and anyone seeking legal advice and services. Distinguished practitioners are Lawyers who are highly regarded by their peers and possess a strong record and positive client feedback.

Please contact Ms. Heidi Chui (heidichui.office@sw-hk.com) for any enquiries or further information.

The Cayman Islands have long been the pre-eminent jurisdiction for investment funds which typically take the form of a segregated portfolio company (“SPC”) or a limited partnership despite its high formation and maintenance cost.  It is mainly due to the fact that the Cayman Islands have no direct taxes of any kind.  However, its tax efficiency has been largely discoloured by legislation in relation to economic substance.

In an attempt to attract investment funds to establish and operate in Hong Kong and lead Hong Kong into becoming a premier international asset and wealth management centre, the Hong Kong Government has made great effort to further enhance Hong Kong’s position in asset and wealth management by diversifying Hong Kong’s fund structures and offering tax relief.  Further to the introduction of the new open-ended fund company regime in July 2018, the Limited Partnership Fund Ordinance (Cap. 637) (the “Ordinance”) came into effect on 31 August 2020, under which a new fund structure named limited partnership fund (“LPF”) is now available within the international financial hub.

A LPF is a private fund that is structured in the form of a limited partnership.  LPFs established under the Ordinance will not only enjoy the necessary contractual flexibility and flexibility in capital contribution and distribution of profits, but it also provides tax exemptions as well as simplified registration process and dissolution mechanism.

The table below makes a brief comparison of the major elements of the most popular investment vehicles in Cayman Islands, i.e. SPC and exempted limited partnership (“ELP”), with the forthcoming LPF regime in Hong Kong :-

While SPC, ELP and LPF all feature high privacy and tax exemption, and are free from exchange control, Hong Kong LPF is relatively cost-effective by way of its one-off registration fee and relatively low sustaining fee, and unlike running a segregated portfolio company, the LPF has streamlined management which further reduces the administrative costs.  Moreover, its simplified registration procedures allow the investors and fund managers to manage and operate the investment vehicles more easily.

Subsequent to the implementation of the economic substance requirements in the Cayman Islands in January 2019, unless there are special needs for mechanism of segregated portfolios (e.g. investors wishing to switch their investments and/or assets between segregated portfolios at some point during the term), the Hong Kong based LPF would be a favourable option for investors from Hong Kong and all over the world.

For more information or advice on the Hong Kong Limited Partnership regime please contact Hank Lo, Osbert Hui or Ann Chan.

This newsletter is for information purpose only. Its content does not constitute legal advice and shall not be treated as such. Stevenson, Wong & Co. will not be liable to you in respect of any special, indirect or consequential loss or damage.