eSignature Legality Guide

None.

An “electronic signature” refers to any letters, numbers, characters, or other digital symbols attached to or logically linked with an electronic record, and used to authenticate or approve that record.

A “digital signature” is a specific form of electronic signature created by transforming the electronic record using an asymmetric cryptosystem and a hash function, allowing someone with the original record and the signer’s public key to verify:

• That the transformation was made using the private key matching the signer’s public key, and
• That the original electronic record has not been changed since the transformation.

When a signature is required, the electronic signature must:

• Be attached to or logically associated with the electronic record, and
• Be executed or adopted to authenticate or approve the electronic record.

For transactions with private (non-governmental) parties, an electronic signature is valid under the ETO if:

• It is attached to or logically associated with the relevant electronic record to identify the signer and show their authentication or approval of the information;
• The method used to attach or associate the signature is reliable and appropriate in the circumstances; and
• The recipient of the signature consents to the use of that method.

For transactions with government entities, where the law requires a signature or imposes consequences for not signing, only a digital signature may be used, provided it is:

• Backed by a recognized digital certificate;
• Created during the certificate’s validity period; and
• Used according to the terms of the certificate.

The ETO specifies certain types of documents that cannot be signed electronically:

• Wills, codicils, or other testamentary documents;
• Trusts (except resulting, implied, or constructive trusts);
• Powers of attorney;
• Any instrument required to be stamped or endorsed under the Stamp Duty Ordinance (Cap. 117), except for contract notes under section 5A of that Ordinance;
• Government conditions of grant and government leases;
• Deeds, conveyances, or other written documents or instruments, judgments, and lis pendens under the Land Registration Ordinance (Cap. 128) affecting land or premises in Hong Kong;
• Assignments, mortgages, or legal charges as defined in the Conveyancing and Property Ordinance (Cap. 219), or any contract relating to or effecting the transfer of real property or interests in real property;
• Documents creating a floating charge as described in section 2A of the Land Registration Ordinance (Cap. 128);
• Oaths and affidavits;
• Statutory declarations;
• Judgments (in addition to those in section 6) or court orders;
• Warrants issued by a court or magistrate;
• Negotiable instruments (except cheques marked “not negotiable”); and
• Proceedings before Hong Kong courts and tribunals.

Whether a document can be signed electronically depends on the type of document, not the nature of the transaction.

If the law does not require a signature, parties may use any form of electronic signature. In case of a dispute, the party relying on the electronic signature may need to provide supporting evidence, such as signer authentication, proof that the document was tamper-evident after signing, and an audit trail.