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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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4 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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Inland Revenue Ordinance's clauses about confidentiality:

4.Official secrecy 

(1) Except in the performance of his duties under this Ordinance, every person who has been appointed under or who is or has been employed in carrying out or in assisting any persons to carry out the provisions of this Ordinance shall preserve and aid in preserving secrecy with regard to all matters relating to the affairs of any person that may come to his knowledge in the performance of his duties under this Ordinance, and shall not communicate any such matter to any person other than the person to whom such matter relates or his executor or the authorized representative of such person or such executor, nor suffer or permit any person to have access to any records in the possession, custody or control of the Commissioner. (Amended 9 of 1958 s. 3) 

(2) Every person appointed under or employed in carrying out the provisions of this Ordinance, shall before acting under this Ordinance take and subscribe before a commissioner for oaths an oath of secrecy in such form as the Board of Inland Revenue may specify. (Amended 39 of 1969 s. 2; 47 of 1997 s. 10) 

(3) No person appointed under or employed in carrying out the provisions of this Ordinance shall be required to produce in any court any return, document, or assessment, or to divulge or communicate to any court any matter or thing coming under his notice in the performance of his duties under this Ordinance, except as may be necessary for the purpose of carrying into effect the provisions of this Ordinance. 

(4) Notwithstanding anything contained in this section, the Commissioner or any officer of the Inland Revenue Department authorized by the Commissioner in that behalf may communicate any matter which comes to his knowledge, including a copy of any return, accounts or other document submitted to him in connection with this Ordinance—

  • (a)to the Commissioner of Rating and Valuation, to the Collector of Stamp Revenue, or to the Estate Duty Commissioner; (Amended 20 of 1948 s. 4; 29 of 2018 s. 4) 
  • (b)(Repealed 12 of 1999 s. 3) 
  • (c)to the Secretary for Justice, or a public officer authorized by the Secretary for Justice, for the purpose of reporting under section 68(5) an appeal to the Board of Review; (Added 2 of 1971 s. 3. Amended 79 of 1992 s. 10; L.N. 362 of 1997; 29 of 2018 s. 4) 
  • (d)to any person appointed under or employed in carrying out the provisions of the Business Registration Ordinance (Cap. 310), as regards any matter required to be notified to the Commissioner pursuant to section 8 of that Ordinance by the person submitting such return, accounts or other document; or (Added 79 of 1992 s. 10. Amended 13 of 2010 s. 26; 29 of 2018 s. 4) 
  • (e)to the Commissioner for I&T, or a public officer authorized by the Commissioner for I&T, for the purpose of seeking advice under section 18 of Schedule 45. (Added 29 of 2018 s. 4)
(5) Notwithstanding anything contained in this section, the Commissioner may permit the Director of Audit or any officer of that department duly authorized by the Director of Audit in that behalf to have such access to any records or documents as may be necessary for the performance of his official duties. The Director of Audit or any officer so authorized shall be deemed to be a person employed in carrying out the provisions of this Ordinance for the purpose of subsection (2).
(6) Notwithstanding anything contained in this section, where the Commissioner is of the opinion that any tax deemed to be in default under the provisions of section 71(1) has for the time being become irrecoverable, he may communicate to the Financial Secretary the names and descriptions of the persons charged with such tax together with particulars of the tax in default. (Added 9 of 1958 s. 3)
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