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Signing documents during COVID-19 in Hong Kong

14 April 2020. Published by Jason Carmichael, Partner and Stephanie Northcott, Registered Foreign Lawyer

This blog gives some practical advice on using electronic signatures in Hong Kong to sign documents during the Covid-19 restrictions, including where signatories and others are working from home without access to usual printing and scanning facilities.

Are electronic signatures legally binding?

Yes, unless the matter or the act to which they relate falls under an exception. 

How do I get electronic signatures without access to a printer or PDF machine?

Traditionally, "electronic signature" has meant a physical wet-ink signature which is scanned in to PDF, and then sent by email.  That approach may not be possible during the current period of government advised working from home.

The legal definition of an "e-signature" (under the Electronic Transactions Ordinance ("ETO") (Cap. 553)) is wider than this, and includes any letters, characters, numbers or other symbols in digital form attached to or logically associated with an electronic record, and executed or adopted for the purpose of authenticating or approving the electronic record.

The ETO provides that, where the law requires a person to sign a document (unless either signatory is a government entity, or it is specifically required to have a wet ink signature, such as documents to be filed with the Land Registry),  that requirement is satisfied by their e-signature, provided that:

1. The person signing attaches their e-signature to an electronic record for the purpose of identifying themself and indicating their authentication or approval of the information contained;

2. The method used to attach the e-signature is (i) reliable and (ii) appropriate for the purpose for which the information in the document is communicated; and

3. The person receiving the e-signature consents to the use of that method.

The ETO specifically states that, in the context of the formation of contracts, if an offer or the acceptance of an offer is in whole or in part expressed in an electronic record, an e-signature shall not be denied legal effect.

However, there are certain exceptions and the usual conditions apply, including that the signatory must have the necessary authority to sign the document.

In recent years, electronic signature platforms such as PandaDoc, DocuSign, Adobe Sign and HelloSign have also offered an alternative solution to wet ink signatures.  These applications enable documents to be sent to signatories and signed by that signatory merely clicking on the relevant boxes.  Printers and scanners are not needed. These have not commonly been used in Hong Kong, but this may change given the current circumstances. Additionally, the exceptions set out below will apply.

Exceptions to e-signatures

The recognition of e-signatures as having the same effect as a wet-ink signature does not extend to signatures required under the documents set out below.

Many of these documents require extra formalities (e.g. witnessing, whereby a witness must be physically present and able to sign the attestation clause).  The UK's approach as regards these documents is to recognise an e-signature in relation to these documents as long as those extra formalities are satisfied, whereas Hong Kong's approach, as seen in the ETO, seems to be to exclude e-signatures save to the extent they are specifically allowed for a category of documents.

The documents to which e-signatures cannot apply includes:

1. A will, codicil or any other testamentary document;
2. A trust;
3. A power of attorney;
4. Any instrument required to be stamped (other than a contract note which falls under s 5A of the Stamp Duty Ordinance (Cap. 117);
5. Government conditions of grant and Government leases;
6. Any deed, conveyance or other document or instrument in writing, judgments, and lis pendens referred to in the Land Registration Ordinance (Cap. 128) which may affect any parcels of ground tenements or premises in Hong Kong;
7. Any assignment, mortgage or legal charge within the meaning of the Conveyancing and Property Ordinance (Cap. 219) or any other contract relating to or effecting the disposition of immovable property or an interest in immovable property;
8. A document effecting a floating charge referred to in s 2A of the Land Registration Ordinance (Cap. 128);
9. Oaths and affidavits;
10. Statutory declarations;
11. Judgments or orders of court;
12. A warrant issued by a court or a magistrate; and
13. Negotiable instruments (excluding cheques that bear the words "not negotiable").

E-signatures also do not apply in relation to the signatures required for the purposes of any legal, arbitral, regulatory or disciplinary proceedings, unless the relevant legislation relating to those proceedings provides for its application.