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3 elements of confidentiality

Case: COCO V A N CLARK (ENGINEERS) LTD: CHD 1968

First, the information must be of a confidential nature.

The second requirement is that the information must have been communicated in circumstances importing an obligation of confidence.

Thirdly, there must be an unauthorised use of the information to the detriment of the person communicating it.

Reference 1: https://swarb.co.uk/coco-v-a-n-clark-engineers-ltd-chd-1968/

Reference 2: http://www.onc.hk/zh_HK/the-hku-leaked-tapes-confidentiality-and-injunction/

Further, public interest may contradict the obligation of keep confidentiality

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3 Answers

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Professional accounts may under COE disclose the Matter (Non-Compliance with Laws and Regulations) to to appropriate authority. It's not a  breach of the duty of confidentiality.

360.25 Further action by the professional accountant may include:

  • Informing the management of the parent entity of the matter if the employing organization is a member of a group.
  • Disclosing the matter to an appropriate authority even when there is no legal or regulatory requirement to do so.
  • Resigning from the employing organization.

360.30 If the senior professional accountant determines that disclosure of the matter to an appropriate authority is an appropriate course of action in the circumstances, this will not be considered a breach of the duty of confidentiality under Section 140 of this Code. When making such disclosure, the professional accountant shall act in good faith and exercise caution when making statements and assertions.

Reference: http://app1.hkicpa.org.hk/hksaebk/HKSA_Members_Handbook_Master/volumeI/COErevised.pdf#page=121

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Use of injunction (禁制令) to let confidentiality leakers stop their action

An injunction is an equitable remedy in the form of a court order that compels a party to do or refrain from specific acts. A party that fails to comply with an injunction faces criminal or civil penalties, including possible monetary sanctions and even imprisonment. They can also be charged with contempt of court. Counterinjunctions are injunctions that stop or reverse the enforcement of another injunction.

Reference 1: http://www.clic.org.hk/en/topics/civilCase/commencement_of_trial/q6.shtml

Reference 2: http://www.onc.hk/zh_HK/the-hku-leaked-tapes-confidentiality-and-injunction/

Reference 3: https://en.wikipedia.org/wiki/Injunction

Reference 4: https://www.hongkongcaselaw.com/tag/miscellaneous-proceedings-no-2801-of-2015/

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Expansion on injunction:

Merchants (Plaintiff) can consider using "anti-suit" injunctions (禁訴令) to prohibit defendant to suit at other law jurisdictions (the power of bounding on defendant may depend on how many assets defendant hold in Hong Kong).

"Anti-suit" injunctions clause(s) can be included in business contracts.

Reference 1: https://www.hongkongcaselaw.com/ever-judger-holding-co-ltd-v-kroman-celik-sanayii-anonim-sirketi/

Reference 2: http://www.hk-lawyer.org/tc/content/%E7%A6%81%E8%A8%B4%E4%BB%A4

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