Hong Kong

Abstract

Inherited from the common-law tradition, Hong Kong has no statutory protection for confidential information and trade secret. Instead, confidential information is protected by the common-law practice of breach of confidence. The breach of confidence claim covers a wide range of confidential information, including but not limited to technical know-hows, commercial records, government or even personal information. For a breach of confidence claim to be established, three elements must be found. First, the subject information must have the necessary quality of confidence. Second, that information must have been imparted in circumstances importing an obligation of confidence. Third, there must be an unauthorised use of that information to the detriment of the party communicating it. Once a breach of confidence has been found, the aggrieved owner of the information is entitled to the equitable remedy of injunction. Damages, including exemplary damages, are also available according to the principle set down in China Light & Power Co Ltd v Ford. It is noteworthy that Hong Kong has hesitated to introduce criminal liabilities to breach of confidence. In spite of the global tendency towards criminalization of trade secret infringement, a consultation paper issued by Hong Kong Bar Association (“HKBA”) in 2001 explicitly voiced against adopting such legislation in Hong Kong.

Note: “Reprinted from Trade Secret Protection: Asia at a Crossroads, August 2021, pp. 287-329, with permission of Kluwer Law International.”