Already registered? Sign In New here? Sign Up

Frequently Asked Questions

What does Hong Kong Probate Law concern?

Probate


What type of will living in Asia - from U.S.

We are both U.S. citizens, born and raised on the East Coast - in "common law" states in the U.S., but we have lived in Asia for the past 6 years (Tokyo & HK) and should be here for a while longer. We would like to have a will executed as we will have a newborn soon and would like your ideas on that. Someone mentioned that we would need one in case either of us dies and the other can not take our child out of Hong Kong. Is this the case? Kindly advise. Thank you.

It is advisable that you and your spouse each should have two separate wills each with consideration of you and your spouse’s assets in Hong Kong (a separate will as well as for the assets worldwide i.e. USA). Hong Kong then will only probate your assets which are situated in Hong Kong. For assets in other jurisdiction i.e. USA, you will need to obtain probate for them in the jurisdictions which they are situated.

Therefore it is advisable to have two wills so that probating of yours and your spouse’s estate in Hong Kong and elsewhere can be dealt with at the same time in order to avoid delay and extra probate fees. If one of the child’s parent dies, then usually the other parent will have custodial rights of the child whether a will is not executed or not. The surviving parent shall assume responsibility of the child and will be able to take the child out of Hong Kong.

It is advisable that there should be a provision in the will for an appointment of a legal guardian of the child should both parents die simultaneously. The legal guardian will assume the responsibilities of the child. Often a trust clause in the will is also used to ensure that some property is isolated solely for the child/children (in the event of the survivors remarriage); your will can contemplate a future arrival, so no need to wait for the newborn. 

What does Hong Kong Tax Law concern?

Tax


Tax Dodging in Hong Kong

I have had enough of Hong Kong and will move back to the UK in a couple of months, unlikely to return to this polluted stink hole. My gift to Hong Kong will be to leave behind a substantial unpaid tax bill so that the government doesn't have more money to not spend on cleaning up this dump.

My question is what will/can the government do to chase me for this tax debt once I have left? Also, what would happen if I ever came back for a visit to HK or simply transitted through the airport at some time in the future?

After you leave and if you leave behind a substantial unpaid tax bill, the Commissioner of the Inland Revenue Department can apply not just to the District Court for the recovery of the same.

Under section 77 of the Inland Revenue Ordinance, if the Commissioner satisfies a Court that a person has not paid all tax assessed upon him and that there are reasonable grounds for believing that the person has departed from Hong Kong to reside elsewhere and if the Court is satisfied that it is in the public interest to ensure that the person, if he returns, does not depart again, without first paying the tax or furnishing security to the satisfaction of the Commissioner for payment of that tax, he shall issue a departure prevention direction to the Director of Immigration and the Commissioner of Police directing them to prevent the person from departing from Hong Kong (should he fail to pay the tax or furnish security).

Therefore, if you don’t pay before you leave and if when you come back (potentially even in transit), the immigration department or the police, under section 77(3) of IRO can take such measures including the use of such force as may be necessary to prevent you from departing from Hong Kong, i.e. “arrest” you.

Please also note that under section 52(7) of the IRO, your employer has a duty to give notice to the Commissioner of your expected departure should he know that you will leave Hong Kong permanently and to withhold your one month’s salary for the payment of any tax, if necessary. The employer has to file with the Commissioner either IR56(f) “cessation notification” form or IR56(g) “departure notification” form when you ceased to be employed by your employer.

The Commissioner can also under section 76 of IRO ask your employer for your account number of your bank in Hong Kong and take steps to “freeze” your account in Hong Kong and to order payment on your behalf after you leave.

Should the tax authority determine not to place any such order against the individual, the Government may take steps to enforce the debt outside Hong Kong should it be significant or, occasionally, as a matter of policy. It is our experience that such overseas enforcement is rare. If the taxpayer returns to Hong Kong with a tax liability outstanding, he risks the consequences as indicated above although such consequences are not in any way automatic.

US Overseas Tax Woes

I hold US citizenship and have been in Asia for 9 years now. I have recently married a Singaporean and it is very unlikely that we will ever return to the US as we have a successful business in Singapore.

So you have tax problems…..you and every other US resident or passport holder, it comes with the “benefits”. The good news is that you are actively running a business offshore of the USA there are rules in place to soften the blow from Uncle Sam, as well as rather generous personal exemptions for BOTH income and housing, details of which are too long for this column, (as is explaining the impact on the US/Singapore Tax Treaty).

A more drastic measure would be to acquire an Asian-based citizenship (which should not be too difficult, given your long history in Asia and your Singapore wife), then turf your US citizenship. The difficulty with such action would be that if the prime motive for discarding your US citizenship was tax-driven, US authorities take the view that you are still part of their “family” and therefore you should contribute to the US tax base regardless of whether you have formally given up your US citizen ship or not…quite a generous interpretation of the “extended family” n’est pas. Of course, if you were to give up your US citizenship, you would also lose the other benefits of carrying a US passport, including being the first hostage taken and the last to be released.

Spouses and Taxes

I am from the US and about to relocate to HK for 18 months with the HK subsidiary of the US-based company I work for. Obviously, they will sponsor my work visa. However, my girlfriend of 6 years wants to come along. If we were to get married at the local court house prior to my leaving, would she automatically qualify as "dependent" -- and therefore be able to stay with me for the 18 months?

Also, if I'm paid by the HK company (as opposed to the US one) does that mean I do not pay US FICA tax, only HK Tax?

If you marry your girlfriend, whether in the USA or elsewhere, she will be eligible to apply for a Hong Kong dependent visa with you as her sponsor assuming you can prove conclusively the fact of and bona fides of the marriage. Bear in mind that you must finalize your own employment visa application in Hong Kong before your wife’s dependent visa application can be finalized. In addition to the substantial documents required for your own employment visa application, you must also provide substantial supporting documents in connection with the dependent visa application of your wife to be – e.g. original marriage certificate, proof of income and financial status, proof of residence in Hong Kong, among others.

As regards your tax question, even if your salary is paid by the Hong Kong entity, as a US citizen, you are still required to pay US tax should your income exceed the U.S. offshore employment exclusion amount (for year-end 2000, US$76,000/single).

Note: the amount of tax you pay in Hong Kong is generally deductible from your tax payable in the USA even though no formal income tax treaty exists.

Unpaid Tax

I left HK 2 years ago and failed to pay my tax, which was a reasonable amount, they closed my bank account, and issued a letter saying the debt was being passed over to a debt collector. I have since returned to HK in and out a few times. I know that I am obligated to pay this outstanding tax, what can I expect from the debt collection agency when I contact them, are they going to reasonable enough to allow me to arrange some form a payment plan to pay it back, or will that take harsher measuers against me..

We suggest that a direct approach to the Inland Revenue Department (IRD) to negotiate for a payment schedule to settle your outstanding tax is the best first stage. It is possible to negotiate a payment by instalments than rather approaching the debt collectors to settle the matter. Usually the IRD is quite reasonable and depending on your financial circumstances, they would compromise and normally grant an arrangement to pay the outstanding tax by instalments. Again depending on your financial circumstances ( your grounds for not paying the tax earlier), IRD may waive the interest and penalty incurred on your outstanding tax and may, in some circumstances, even make a deal on the original amount. You may wish to seriously consider obtaining legal representatives to approach the IRD directly on your behalf to settle the matter (both to protect your personal privacy as well as to provide a more professional and compelling presentation. In theory, if IRD has reasons to believe you may leave Hong Kong again, IRD can prevent you from leaving Hong Kong by making an application to Court. The matter should therefore be resolved to prevent any inconvenience and embarrassment to you.

What does Hong Kong Landlord and Tenant Law concern?

Landlord and Tenant


Housing Deposit

If my apartment is not in living condition, am I able to get request for compensation due to loss of use of my home as well as get back my deposit in advance?

The advice really depends on whether a written tenancy agreement setting out the terms & conditions of the rental of your home was signed between the landlord and yourself. One will need to know exactly why your apartment is “not in a living condition”. Are there repair works that need to be carried out to restate your flat to “an acceptable living condition”. Generally speaking if you rented the premises unfurnished then it is usually implied in law that the premises need not be fit for human habitation unless expressly indicated in the tenancy agreement, however if the landlord is obliged to repair the premises during the tenancy period) fitness fo habitation is implied. If the lease does indicate that your landlord is required to carry out repair work on your apartment but he refuses to do so, you have a claim for his breach. If the dispute can not be resolved between the respective parties and you wish to terminate the tenancy agreement and look for the return of the deposit then you may apply to the Lands Tribunal to resolve the dispute. Again usually at law tenant can not offset his rent against the deposit advanced though practically, this is frequently done. In any event, it is advisable that your legal advisor review the tenancy agreement (if any) and receive details of the condition of your apartment before they can be in a better position to advise.

Singapore - tenancy for employee's occupation

I recently moved to Singapore and entered into a 2 year lease for my apartment. What are the policies concerning the Diplomatic Clause and early termination of the lease?

A diplomatic clause is usually found in tenancy agreements taken out by a company for the benefit of its employees. It allows the company to givenotice to the landlord to terminate the tenancy in the event that its employee is no longer in its employment or posted out of Singapore. Thisright to terminate the tenancy agreement is usually exercisable only after 12 months of tenancy and by the company giving at least 2 to 3 months' notice to the landlord or payment of rent in lieu of notice.

The right to terminate the tenancy prematurely is a commercial matter which can be negotiated between the landlord and the tenant.

Water Leakage from Apartment

We have had water leaking from the apartment upstairs into our apartment for about 3 to 4 months now. We rented the apartment with some furniture i.e a bed and wardrobe. The tenancy agreement states that the landlord is obliged to repair the premises especially if it is caused by a problem from an external source (not of our own making).We have ben advising the landlord and the managers of the property (verbally not in writing) of the problem for 3 to 4 months. Nothing has been done to solve the problem mainly becauase of the unwillingness of the tenants and landlord upstairs. The apartment is not uninhabitable but the leak is causing great disruption as it is located above the bed in our master bedroom and I have had to rig up a temporary drain to get the water away.

Can I stop paying rent or claim compensation from our landlord or both or do we have to agree an amount of compensation with the Landlord and is there a typical industry level of compensation (e.g. % of rent). Am I entitled to any compensation at all?

If it is clear in the tenancy agreement that the Landlord is obliged to repair the premises and he fails to do so, then the Landlord is in breach of the tenancy agreement. Usually under the contract terms, you are not entitled to stop payment of the rent though practically this is often done. Depending on what the Deed of Mutual Covenants for your Building and any House Rules for the premises (often issued by the management office), the Landlord may also be in breach of the House Rules for causing inconvenience, nuisance and annoyance to you and others. If you decide not to pay rent because of the damage, you may run the risk of the landlord forfeiting your lease and suing for the arrears of rent if what you do is not justified. It is difficult to indicate what sort of compensation you are entitled to; the answer is what is "reasonable in the circustances". If the matter is not mutually resolved between yourself and the landlord, then you may apply to the Lands Tribunal to resolve the dispute. It is advisable to give to the landlord and management office a written notice of the water leakage as evidence of the course of action you undertook if the dispute should proceed to the Lands Tribunal for its determination.

Housing Insurance

We have had a fire in our rented apt. Our tenancy contract has no mention of insurance and we were not advised to take out individual insurance for the property or contents. By law should our landlord be liable for the property damage and can he claim from his insurance co? We are expected to foot a large repair bill for all the damage caused by the fire. We expect to pay for the contents damage but surely not the actual roof, door, windows etc?

PLS HELP! We don't know where we stand.

First read the lease and see exactly what it says; often people don't seem to understand that the lease is a most important document in all matters between landlord and tenant; it is the "deal" reflected in contractual form. Typically the tenant would agree to keep the premises in good repair and misuse against risk. It certainly is not implied by law that a landlord should be liable for property damage. If the landlord has insured the premises and the contents therein, he can usually claim the damage from his insurance company but often only for his own goods and even then the tenant may be liable to a claim. Though it is usually the landlord’s obligation to carry out structural repairs to the premises, the law implies that a tenant should use the premises in a tenant-like manner which means the tenant is obliged to take proper care of the premises. Even if there is no contractual term where you agree to misuse and repair, if the fire was caused by your negligence (regardless whether the landlord is insured), the landlord may try to recoup the costs of repairs of the premises (including the repairs to the door, windows etc.) from you. You may not be able to exclude your liability for the damage caused to the doors and windows etc if the damage was caused by your negligence. We would recommend you consult a lawyer to better protect your interests if the landlord does claim from you for the damage to the premises including the roof, doors and windows and you intend not to pay, be prepared by the landlord to forfeit your lease and sue for the damages caused to the premises which will be substantial.

Landlord Trouble

A couple days ago, a summons was placed on my flat door which was addressed to my landlord, from their Bank, stating the Bank's intention of foreclosing on this premise due to the landlord's violation of "Order 66". I passed this along to my landlord and I haven't heard from her since. Her integrity has always been questionable. In the event of a foreclosure, how quickly could the bank force me to vacate? Furthermore, will I be able to pursue legal action against the realty broker who did not perform due diligence on this landlord?

(a) In the event a foreclosure order is obtained from the Bank, in normal circumstances, as a tenant of the foreclosed property, you will usually have 28 days/one calendar month after the service of the order upon you to vacate the property. If you refuse to vacate the premises after the expiry of the relevant period, the Bank will be entitled to apply to the Court to obtain an order of possession of the property. It usually takes two to three months to obtain the order of possession. It is not advisable to wait until an order of possession is served upon you because you may be at risk of paying the bank’s legal costs of obtaining the necessary order of possession.

(b) There are certain sets of rules/ code of conduct pursuant to the Estate Agent Authority Ordinance of which the realty broker needs to comply with in a tenancy transaction. If the realty broker breaches his code of conduct, you may report the same to the Estate Agent Authority for further investigation. Although in normal circumstances, realtor broker is obliged to perform due diligence on the landlord but his queries are limited to what is required under the said Ordinance. Whether you can sue the broker for due diligence, more details of the facts of the case is required before further advice is given; generally it is unlikely the realtor is at fault. 

Leaving Town?

If I were to have to leave town permanently six months into my housing tenancy agreement, what are my options for a) breaking out of the tenancy (standard 2 months notice after 12 months) and b) recovering any of the deposit?

Unless the Landlord agrees that you may break the lease after moving in for six months, you will be in breach of your tenancy agreement; be prepared for the landlord to forfeit your deposit and sue for the remaining rental due. Usually at law a tenant can not offset his rent against the deposit advanced though practically, this is frequently done. Although, legally the Landlord is entitled to sue, he may encounter difficulties to recover any monies due if you do leave town permanently. If he is aware that you will leave and not return to Hong Kong, he may apply to prevent you from departing Hong Kong. A lawyer can explain in more details your options and alternatives for a few thousand Hong Kong dollars.

What does Hong Kong Property Law concern?

Property Law


Singapore property purchase

I plan to purchase "private property." Could you pls advise me the cost incurred by the "seller" and the"buyer" (fees), other than the cost of the property. Property is in Singapore.Thank you for your kind attention.

Presently, conveyancing costs in Singapore is calculated based on a scale set out in the Legal Profession (Solicitors' Remuneration) Order. Theamount of costs you would have to pay would depend on the sale price or the purchase price of the property. If the sale price or purchase price is aboveS$5 million, the costs can be agreed upon between the client and solicitor, having regard to the scale.

In addition to the legal costs for the purchase, the purchaser would also have to pay the legal costs for the mortgage if he is taking a loan tofinance the purchase. The costs would depend on the amount of loan taken.

Please note that the stamp fees on the transfer to be borne by the purchaser is about 3% of the purchase price. The seller need not pay any stamp fees.

What does Hong Kong Family Law concern?

Family Law


Singapore Divorce

What is the easiest way to get divorced from my wife in Singapore?

Mutual consent of both parties is always the easiest way and generally the fastest and cheapest too. Particulars of why you wish to be divorced and of your marriage are needed by your lawyer to assist you further.

Divorce with or without consent

I was married with her for 3 years but we are living separately and have no children.

If i petition a divorce but she disagrees, how long will it take for the divorce to take effect?

Assuming you are a Hong Kong resident, you will need to be separated for at least two years before you can petition for a divorce if your wife does not agree to a divorce. Depending on your circumstances, you could use other grounds to petition for divorce i.e. unreasonable behaviour or adultery. You will not need to obtain her consent of the divorce if you are petitioning on the ground of two year’s separation or unreasonable behaviour or adultery. If your wife agrees to the divorce you only need to be separated for one year. Either way, one or two years (or other grounds) if there is no dispute to the finances and property division then the proceedings will usually take around six to nine months before the actual divorce papers are issued by the Court. To protect your interest, you may wish to enter into a ‘Deed of Separation' (prepared by a lawyer) signed between the parties at this stage evidencing the separation itself and the agreement reached between the division of any matrimonial property.

Bring home a boyfriend

Me and my husband have been separated "not legally" for a year now. If I bring home a new boyfriend, will that be a problem?

If your husband discovers you have a ‘new boyfriend’, he may use this as a reason to petition for divorce on the ground of adultery. If there are children involved, petitioning on the ground of adultery may affect the outcome of who gets custody of the children of the family but usually it will not unless there is evidence to suggest that you are an "unfit" mother with or without the "new boyfriend".

What does Hong Kong Media Law concern?

Media Law


Internet

I have been impersonated on the Internet by another person, mainly on chat channels, but also some emails were sent in my name containing material that falls well within the "defamation of character" border line. How is HK law towards these Internet crimes? Can I sue for monetary compensation?

There is no special legislation in Hong Kong governing Internet crimes. The Crimes Ordinance and the Telecommunications Ordinance contain provisions regarding the regulation of activities that would also apply to the Internet. The difficulty lies on how to prove that somebody has impersonated you on the internet.

If somebody sends emails in your name containing "defamatory" materials, then he/she is liable under the Defamation Ordinance and you may sue him/her to seek damages under the tort of deceit or passing off. That person may also be breaching the Personal Data (Privacy) Ordinance.

We advise you report the matter to your ISP and the police.

What does Hong Kong Immigration Law concern?

Immigration Law


Working visa for spouse

I currently have a working visa, but can't seem to get one for my spouse, as we are not 'married' according to HK rules. We have together for 10 years and choose not to get married for personal reasons. In some countries we are considered technically 'married' in the eyes of the law, but not here.

Can I appeal this?

You are correct concerning the standard immigration policy in this regard. Generally, the chances of successfully applying for a dependant visa on behalf of an unmarried ‘partner’ are low since such visa is reserved for married “dependents”. The percentage of success increases however if:

  1. the both of you have been together for a considerable period (towards establishing a common law relationship) and you are able to provide proof of the same (i.e. how many years you have been together, whether the both of you are currently living together and if so for how long and whether the two of you jointly own any property or other assets or are leasing property on a joint basis, etc); or
  2. marriage is near certain to take place in the very near future and you are able to provide proof of the same.

Under one of these two circumstances, the Immigration Department may consider her dependant visa application. Much will depend on presentation and collation of the information needed.

The other option available to her is to locate suitable employment in Hong Kong and apply for an employment visa.

False Passport!

I have recently discovered that my Philippina wife of 2 1/2 years has a false passport. We have a 2 year old daughter, but her birth certificate has the wrong mother on it. Can you tell me the consiquences we would face if we come clean to the Authorities here in Hong Kong, or if we went back to the Philippines, what consequences would we face there. And could you please tell me how we would stand in getting a visa for my wife for the U.K.

As regards the issue of your wife’s false passport, she may well be guilty of an offence in Hong Kong under s.42 of the Immigration Ordinance which carries a maximum penalty of HK$150,000 and 14 years imprisonment. While it is difficult to say how the immigration authorities in Hong Kong and the Philippines will deal with this matter without further background information, the severity of the penalty imposed (if any) will depend on the circumstances of the case, i.e. how long your wife has held the false passport, the circumstances under which your wife obtained the false passport and whether your wife has any previous criminal convictions. Based on your wife’s possession and use of a forged travel document, the chance of her obtaining a UK visa is likely to be very slim.

Changing jobs and HK ID card for expats

8 months ago, I was sent by my (US-based) company here to Hong Kong, and they are about to apply for a visa for me to work/reside here, and run their new local office. At the moment, however, I am contemplating taking a job offered by a local HK company. If I were to go through with the visa application with my existing employer, then change jobs in, say, 4 to 8 months - would this complicate matters in obtaining the second (and to me, more important) work visa? And if it is not advisable to apply for this first work visa, can I still have my belongings shipped here to HK from the USA - or should I have them shipped to a friend who is a HK citizen? My ultimate goal is to become a permanent resident in Hong Kong. Thank you in advance for helping to clear this up!

While change of employer applications are somewhat more straightforward than
first time visa applications, it would be wrong to assume that your change of employer application with Company B will definitely be improved even if you have already been granted an employment visa with Company A. This is especially true if the post on offer with Company B involves different duties than your original post with Company A.

The chance of a successful change of employer application will diminish if, after obtaining your visa with Company A, you immediately apply for a change of employer application with Company B. If you intend to pursue a change of employer application within the first six months of obtaining your original visa application, be prepared to be questioned by the Immigration Department as to your motives.

Unless you are advised that your chances of a successful visa application are very good, moving all of your personal items to Hong Kong before obtaining visa approval is not advisable.

Visa for spouse

There is a possibility that my husband is transfered to Hong Kong.
Will that be easy for me to get a working visa?
Should I do that prior to moving to HK or after we move?
Thank you

The fact of your husband applying for a Hong Kong employment visa will not have any effect on your own employment visa application (unless you intend to make a joint investment of some sort). Your employment visa application will be processed solely on the merits of your own relevant academic skills, working experience and other factors. If your husband is going to apply for an employment visa you may consider applying for a dependent visa.

Holding a dependent visa would allow you to reside and work in Hong Kong for the duration of your husband’s employment in Hong Kong (i.e. while he holds an employment visa). The advantage of the dependent visa is that, in addition to being granted residence in Hong Kong you may pursue employment in Hong Kong without obtaining the prior consent of the Immigration Department.

Employment visa applications made by visitors in Hong Kong (also known as change of status applications) are not encouraged by the Immigration Department. Also there is no guarantee that your applications will be approved. Therefore, you and your husband should apply for your respective visa applications before you come to Hong Kong.

Processing...?

I have applied for a dependant visa in HK. My wife is a permanent HK residentand I am from the UK. We have supplied every piece of paperwork and documentation required. The immig. dept. are now spending 2 weeks to concider my application. Is this purely an admin. exersize to check that all our p/wk is legal, ie. can I get a flat, start looking for work, etc, or could they still say "no", even if all the certificates are genuine ?

The Immigration Department normally requires 4-6 weeks to process a dependent visa application. Regardless of how much information/documentation you have provided to them, the Immigration Department could certainly still say “no” and refuse your application at this point, since they have that “reasonable” discretion. Although, if they see a “problem” (e.g. perhaps there is an inconsistency between the spelling of your wife’s name on her passport with how it is spelled on your marriage certificate or some concern regarding the legitimacy of the marriage) they are more likely to point this problem out to you and ask you to remedy it.

If you are already in Hong Kong, there’s no harm in your just looking for employment or residence. However, you are not legally permitted to take up employment before obtaining approval from the Immigration Department of your dependent visa application.

Work visa

I came to Hong Kong as a tourist but would like to remain and work here. I can apply for a job but most companies want someone with a current work visa. How do I get one on my own if possible or what is the best way to obtain one?Are there any temporary work visas?

Hong Kong has no provision for temporary work visas; you cannot commence employment in Hong Kong until you have been approved by the Hong Kong Immigration Department. To qualify for a work permit in Hong Kong, you must receive an employment offer from a company willing to hire you. Your potential employer must then submit an application on your behalf to the Immigration Department and they must demonstrate (among other things) that they are unable to fulfill the position with a local hire and that your employment will be of “benefit” to Hong Kong. This is a very important application, if you fail you go; we would recommend that you have professional assistance. 

Permenant Residency

I have lived in HK for 15 years and my mother, father, sister and myself are all permenant residents. My long-term boyfriend moved out here over almost 2 years ago and sucessfully secured a work visa on a yearly basis (it's been renewed twice). If we
get married, should we apply for his dependant permenant visa or let him carry on with his work visa? Eventually, he would like to qualify for permenant residency.
Thank you.

If you and your boyfriend get married, he may either continue to reside in Hong Kong under his employment visa or apply for a dependent visa. However, the Immigration Department may not entertain his application for a dependent visa while he holds an employment visa; from the Immigration Department’s perspective, there would be no reason to grant your husband a residency visa (dependent status) when he possesses an employment visa that already grants him residency in Hong Kong.

While we are not saying that the Immigration Department will definitely not entertain your future husband’s dependent visa application, you may find that the Immigration Department will question the “appropriateness” of his applying for a dependent visa while he is holding an employment visa.

Work visa-professional assistance

I posted a question about work visas which you answered very sraight forward, Thank you. You suggested professional assistance from a lawyer I presume. How will this help if a company will sponsor me? Won't they do all the work for me? Do you suggest getting a lawyer as well as having a company sponsor me? Do you have any recomendations for law firms or a particular lawyer?

Regardless of whether or not your sponsor will do all of the work for you, more important is ‘who’ will be the person responsible for this task and whether they know how to do it properly. Your sponsor may well have correctly compiled all of the relevant supporting documents and forms (which are substantial) and you the applicant, may be perfectly qualified (from the sponsoring company’s perspective) for the position on offer, and still have your application rejected by the Immigration Department for failing to prove you meet the criteria.

While not suggesting that applications not assisted by a solicitor’s office are doomed to fail, solicitors’ offices (who have experience in these matters) do tend to possess a knowledge and experience of the immigration process that extends beyond simply knowing what documents and forms are required. Such knowledge and experience may well be the difference between a successful and unsuccessful application. 

Legal help in obtaining work visa

Is there a particular law firm I should contact before going to HK to get the ball rolling or can I just contact a lawyer once there to obtain a work visa? I will be joining my companion in HK on January 8. We are not married but will marry in the future. This means I am on my own as far as visas are concerned. Any advice will be appreciated.

We would strongly suggest that you “get the ball rolling” by getting in contact with a solicitor’s office before coming to Hong Kong. They can assist in informing you what documents you must provide, can contact the company sponsoring your employment visa application in Hong Kong to obtain all required documents from them and can submit your application to the Immigration Department while you are still overseas.

While you may certainly come to Hong Kong as a visitor before obtaining approval of your employment visa application, we would strongly advise caution in establishing yourself in Hong Kong (i.e. getting an apartment, etc.) before obtaining employment visa approval.

You mentioned your companion in Hong Kong; for your information if your companion is a Hong Kong permanent resident or holds a valid employment visa in Hong Kong, you may (depending on the details of this relationship; e.g. marriage or soon to be) apply for a dependent visa with your companion as your sponsor. If your employment visa application is unsuccessful for some reason, you may wish to consider this option.

Immigration

I was hired by a dotcom in December 1999, arriving from Shanghai so I had no residency card or papers. After working for several months with little development, I started pushing the issue. My boss did not respond, at which point I got concerned and started looking for another job. Meanwhile the company was showing no signs of life, it was clear I had made a mistake. I resigned from the company without resolving my immigration status. I found a new job. My new employer needs a reference from my former boss so that he can file the immigration papers but my former boss has been unresponsive. He is unresponsive, I believe, because he wants to avoid any liabilities for not filing immigration papers on behalf of his employee. I'm in limbo, distraught over an unsuccesful venture and an uncooperative former employer.

What are the obligations of the employer?

Your former boss is not the only person who risks criminal liability in this equation should you found to be employed in Hong Kong; you can also be prosecuted for working in Hong Kong without a valid employment visa. Therefore, forget altogether about trying to get a “reference letter” and concentrate on getting your situation regularized before you break the law, if you haven’t already.

Assuming that an individual is lawfully in Hong Kong, they would focus on obtaining all of the relevant documents required from both the applicant’s side (i.e. curriculum vitae, academic records and certificates etc) and the sponsoring company’s side (i.e. full set of corporate documents and bank statements etc). If any potential difficulty arises (as in your case), additional advice from a solicitor may be advisable.

Focus now on your new application and how you are going to explain to the Immigration Department what you have been doing in Hong Kong prior to this new application – which judging from your note has been almost one year. If the Immigration Department has not already grilled you over your routine departure and return to Hong Kong over the past year, they may well take the opportunity to do so now.

Make sure your new sponsor understands that it would be against his and your best interests for him to inform the Immigration Department that you were previously working in Hong Kong but didn’t have an employment visa. You may have been looking for employment opportunities during this period or perhaps visiting friends or just traveling in the region. In any case, if you or your sponsor are asked to provide an explanation as to what you have been doing in Hong Kong over the past year, use caution and common sense.

What does Hong Kong Civil Litigation Law concern?

Civil Litigation


Enforcing foreign judgments in Hong Kong

Enforcing foreign judgments in Hong Kong

When it comes to enforcing foreign judgements in Hong Kong, foreign counsel should bear in mind that there are two routes by which a judgement of a foreign court can be enforced in Hong Kong?

First, and by the most widely available route available, is either by (i) re-litigating the case in dispute, or (ii) suing on the foreign judgement as a debt. To focus on point two, the preferred method, it is worth bearing in mind that it does not matter whether the judgment to be enforced was granted in a Common Law jurisdiction or Civil Law jurisdiction. Under this route, the plaintiff must file legal proceedings in Hong Kong in the normal manner, citing the foreign judgment debt as the cause of action. The original cause of action becomes irrelevant. The plaintiff will usually apply for summary judgment (arguing that the defendant has no defence) and once obtained, the plaintiff will have a valid Hong Kong judgment, which can be enforced using the ordinary methods of execution.

The other route, which is not so widely used, is by using the provisions of the Foreign Judgements (Reciprocal Enforcement) Ordinance (Cap. 319). This route only applies to a limited number of countries recognized under the Ordinance. Under the Ordinance, the plaintiff must apply for an ex parte order that the judgement be registered. Once registered, the judgement has all the features of a Hong Kong judgement and can be enforced by the usual methods of executing judgement in Hong Kong.

The above outline is not intended as advice in any event a Hong Kong solicitor should be consulted. 

What does Hong Kong Employment Law concern?

Employment Law


Contract

I'm a British citizen and have been working for a major British company for 15 years. For the past 6 years I have been an expat (initially in Singapore, now HK). When I first left UK (& for the first four years of being a 'pat) I had an ex-pat contract which has now expired.

Though I have asked for a new or revised contract (the last was pertinant only to Singapore) the company has not yet done so; though my package for HK is different to that in Singapore, as is my job description.

They are now talking about relocating back to UK (or a third country). However I've been told that my T & C will change...since I have no official contract is it true I actually now have a 'verbal contract' (kind of by default)? How binding is this from both sides?

In a nutshell - can they relocate me and what terms and conditions are they now obliged to provide?

Your case is complicated and depends on a number of parameters. First, was your written ex-pat contract a fixed term contract? Has it really "expired". It may be that a contract can be implied from the old Singapore contract and/or there is an oral employment agreement (subsequent/collateral) between you and the company.

Whatever the contract (and there must be a contract otherwise you would not be ‘employed’), it is, nevertheless binding between you and the company. If now the T & C are varied, there is a possibility of redundancy and of a "constructive" dismissal. Further, depending on the manner of your payment of salary (where, how and who pays you), we may argue that it is an expat contract.

It is a complicated area, depending on facts (your paper trail and exact details); a lawyer should be able to clarify your questions after an initial interview.

Pregnancy pay and leave

Hi,
I signed my contract about 3 months prior to coming to HK in the UK, got pregnant about 3 days before coming out here. I've been with my firm for 2 years so i know I'm entitled to everything, what I want to know is (1) which jurisdiction does my contract, and therefore pregnancy leave ect, operate under?

and (2) what can I expect from HK statutory rights?

HELP!!

I look forward to hearing from you.
Thanks

It depends on what your contract says and whether it is governed by the UK jurisdiction. Usually, you will have legal protection in Hong Kong if your contract of employment is a continuous contract, You will need to work for the same employer for a period of more than 26 weeks immediately before the expected date of your commencement of maternity leave before you are entitled to maternity leave in Hong Kong. In Hong Kong, maternity leave normally begins four weeks before the expected date of the birth of your child and ends six weeks after the actual date of birth. To take maternity leave and enjoy the employment protection, you should serve a notice to your employer specifying the expected date of birth and the date of commencement of maternity leave. If you have been employed for more than 40 weeks before the expected date of your commencement of maternity leave, you should also be entitled to maternity leave pay which is 2/3rd of your normal monthly income.

What does Hong Kong Criminal Litigation Law concern?

Criminal Litigation


How to get Bail when some in Remand?

Dear Sir,
one of my friend was caught my HK custom officers from Kwun Tong Cargo area. When he go there & pick the goods. The goods were from China. My friend bought it from wholesale market.Later customs found it is counterfeit goods. So, custom detained him & brought him to the Magistrate court. My friend pleaded not guilty.Because,he does'nt know the goods are
counterfeit when he bought. This is his first time. His bail appeal was refused. Now he is in Lai Chi Kok Jail. He wants to apply for Bail again. He can give surety for HK$10,000.& Two HK permanent resident will give gurantee for his Bail in the court. Pls, help us to know the procedure.
Thanks in advance.
Zoha

It does sound like a very harsh result; if your friend was properly represented, this result would usually be avoided.

There are various methods of applying for bail on a “second” occasion. After bail has been refused, you may apply at any time to the same magistrate again and ask him to review his decision for bail, or apply at any time for bail afresh before a magistrate, but bail is unlikely to be granted if it has already been refused once and there has been no change of circumstances. Alternately, you may apply to the High Court before a Judge in Chambers. For an application in the High Court, the application must be supported by an affidavit on behalf of the Defendant.

Above all, you should consult a solicitor familiar with criminal matters for review or re-application for bail. 

What does Hong Kong Other Law concern?

Other


Want to open a bar

What are the procedures to operate a bar in HK? My friend said that it is not easy to get permit.

Eight out of ten bars fail miserably; one breaks even and the last one makes money (at least for a while); not a business for the faint of heart. Your first and most important investment ….hire a good business lawyer. He will be worth his weight in gold to save you personally from the 80% whiplash mentioned above. “Liability” is the first word you should underline when you’re considering the bar business. I know that the above is a long way away from your question about licensing but it is a groundwork from which you should consider the entire bar question (leases, contracts and the licensing question).

Hong Kong has perhaps one of the most ridiculous systems in the world for licensing; the Government would have you build an unprofitable restaurant with no liquor licenses, fully equip and operate it for a lengthy period of time and then make their determination as to whether you should have a license. In other words, long after you made all your investment in equipment, leasehold improvements, staff, etc. etc. etc., (and the Government fully realizing that you’ll not make any money without the benefit of high markup liquor sales), the Government considers whether to grant you one of several licenses.

To operate a bar in Hong Kong, the applicant should obtain two licenses which can be applied for concurrently:-

a) liquor license; and
b) restaurant licence

A) The procedures for application of liquor license:-

The applicant should complete an application from (FEHB 106) and submit to Food and Environmental Hygiene Department (the “FEHD”). Then, the FEHD will pass the application details to the Police and Home Affairs Department to obtain their consent. If consent is given the applicant is required to advertise a notice to see any objection from the public. If the answer is negative, a license will be granted. The whole procedure will take not less than 2 to 3 months.

B) The procedures for application of restaurant license:-

The applicant should complete an application form and submit to the FEHD. A restaurant design and layout plan, which includes fire service, air ventilation, sewage layout, structural and floor plan, should be attached. Different government department including the Buildings Department and Fire Service Department (the “FSD”) will investigate in-situ to check the appropriateness of the building services and facilities. If appropriate, provisional licence will be granted. After then, the applicant is required to submit Ventilation reports and Fire Service Reports to FSD, certificate of compliance with building requirement and health requirement to FEHD. If everything runs smooth, licence will be granted and the whole process will take approximately 3 months.