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Exemptions in Schedule 2 of ETO

SCHEDULE 2 [ss. 13(1) & (3) & 50]

Proceedings in Relation to which Sections 5, 6, 7 and 8 of this Ordinance do not Apply under Section 13(1) of this Ordinance

Proceedings before any of the following:

(a) the Court of Final Appeal;

(b) the Court of Appeal;

(c) the Court of First Instance;

(d) the District Court;

(e) the Mental Health Review Tribunal established under the Mental Health Ordinance (Cap. 136);

(f) the Lands Tribunal;

(g) a coroner appointed under section 3 of the Coroners Ordinance (Cap. 504);

(h) the Labour Tribunal;

(i) the Obscene Articles Tribunal established under the Control of Obscene and Indecent Articles Ordinance (Cap. 390);

(j) the Small Claims Tribunal;

(k) a magistrate.

Exemptions in Schedule 1 of ETO

SCHEDULE 1 [ss. 3 & 50]

Matters Excluded from Application of Sections 5, 6, 7, 8 and 17 of this Ordinance under Section 3 of this Ordinance

1. The creation, execution, variation, revocation, revival or rectification of a will, codicil or any other testamentary document.

2. The creation, execution, variation or revocation of a trust (other than resulting, implied or constructive trusts).

3. The creation, execution, variation or revocation of a power of attorney.

4. The making, execution or making and execution of any instrument which is required to be stamped or endorsed under the Stamp Duty Ordinance (Cap. 117) other than a contract note to which an agreement under section 5A of that Ordinance relates.

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) by which any parcels of ground tenements or premises in Hong Kong may be affected.

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 section 2A of the Land Registration Ordinance (Cap. 128).

9. Oaths and affidavits.

10. Statutory declarations.

11. Judgments (in addition to those referred to in section 6) or orders of court.

12. A warrant issued by a court or a magistrate.

13. Negotiable instruments.

New Offences under ETO

To safeguard the integrity and trustworthiness of the CA system, three new offences were created by the Electronic Transactions Ordinance, even of which can result in fine or imprisonment if offended.

obligation of secrecy under s.46

a person who has access to any record, book, register, correspondence, information, document or other material in the course of performing a function under or for the purposes of this Ordinance shall not disclose or permit or suffer to be disclosed such record, book, register, correspondence, information, document or other material to any other person.

false information under s.47

A person who knowingly or recklessly makes, orally or in writing, signs or furnishes any declaration, return, certificate or other document or information required under this Ordinance which is untrue, inaccurate or misleading commits an offence and is liable in the case of an individual to a fine at level 6 and to imprisonment for 6 months and in any other case, to a fine at level 6.

false claim as recognised CA under s.48

A person who makes a false claim that a person is a recognized certification authority commits an offence and is liable in the case of an individual to a fine at level 6 and to imprisonment for 6 months and in any other case, to a fine at level 6.

What is a digital certificate?

A digital certificate is a digital document attesting to the binding of a public key to an individual or other entity.

It allows verification of the claim that a specific public key does in fact belong to a specific individual.

Electronic contracts are valid

This is under section 17 of the Ordinance.

In the context of the formation of contracts, unless otherwise agreed by the parties, an offer and the acceptance of an offer may be in whole or in part expressed by means of electronic records.

Where an electronic record is used in the formation of a contract, that contract shall not be denied validity or enforceability on the sole ground that an electronic record was used for that purpose.

Admissibility of electronic records

This is under section 9 of the Ordinance.

An electronic record shall not be denied admissibility in evidence in any legal proceeding on the sole ground that it is an electronic record.

Electronic Record can be Original Records

This is under section 7 of the Ordinance.

Where a rule of law requires that certain information be presented or retained in its original form, the requirement is satisfied by presenting or retaining the information in the form of electronic records if:

(a) there exists a reliable assurance as to the integrity of the information from the time when it was first generated in its final form; and

(b) where it is required that information be presented, the information is capable of being displayed in a legible form to the person to whom it is to be presented.

Digital Signatures are Signatures

This is under section 6 of the Ordinance.

If a rule of law requires the signature of a person or provides for certain consequences if a document is not signed by a person, a digital signature of the person satisfies the requirement but only if the digital signature is supported by a recognized certificate and is generated within the validity of that certificate.

Electronic Record is as good as "in writing"

This is under section 5 of the Electronic Transactions Ordinance.

If a rule of law requires information to be or given in writing or provides for certain consequences if it is not, an electronic record satisfies the requirement if the information contained in the electronic record is accessible so as to be usable for subsequent reference.

If a rule of law permits information to be or given in writing, an electronic record satisfies that rule of law if the information contained in the electronic record is accessible so as to be usable for subsequent reference.

Legal Framework under Electronic Transactions Ordinance (Cap.553)

The Electronic Transactions Ordinance was passed into laws on 7th January 2000 as part of the major works of the HKSAR Government to promote the cause of electronic commerce, including the delivery of public services through the electronic channel.

provides legal status to electronic records and digital signatures in the conduct of electronic transactions as that of their paper-based counterparts; and

The development of secure e-business framework is one of the main tasks of the Digital 21 IT Strategy of the Hong Kong Government. The Government has adopted the use of the Public Key Infrastructure (PKI) as being the technological framework for the furtherance of secured trading on the electronic framework.

The passage of the Electronic Transactions Ordinance (ETO) has made this become possible as legal recognition is given to the status of the PKI as a certification technology. The ETO is basically modelled upon the United Nations Commission on International Trade Law Model Law on E-commerce (UNCITRAL MODEL LAW ON E-COMMERCE). The ETO provides that digital signatures (as defined by the ETO) and electronic records have the same legal status as that of their paper-based counterparts.

The ETO has at the same time given a legal framework for the establishment of recognised Certification Authority (RCA) to support the conduct of secure electronic transactions. By virtue of the ETO, the Postmaster General is an RCA of Hong Kong and has since its set up begun to accept applications for grant of digital certificates to citizens and organisations in Hong Kong. The certificate is generally known as 'e-Cert'.

Reference Web-site: http://www.info.gov.hk/itbb/english/new/etcontent.htm