HONG KONG SAR, CHINA Law and Practice Contributed by: George Lamplough, Vanessa Cheng and Curtis Pak, Holman Fenwick Willan
• for a fixed or liquidated sum of money against a particular person (other than taxes, fines or penalties). Injunctive relief will not be recognised by the Hong Kong courts under the common law regime. The Hong Kong courts may also refuse recog - nition of a foreign judgment under specific cir - cumstances, such as lack of jurisdiction of the original court, public policy or natural justice concerns. 6. Privileges 6.1 Invoking the Privilege Against Self- Incrimination Protection against self-incrimination is a funda - mental tenet of the common law. In Hong Kong, the right is enshrined in the Hong Kong Bill of Rights Ordinance (Cap 383). When invoked, no adverse inference can be drawn from remaining silent. However, the right not to self-incriminate is abro - gated in some specific circumstances. In 2012, the Hong Kong Court of Final Appeal held that a person who was not a suspect was not allowed to invoke their right to silence during a POBO investigation. Subject to a limited use order, the witness was required to provide the information and documentation requested. In 2019, the courts clarified the position on self- incrimination in relation to Section 181 notices issued by the SFC (being a preliminary notice for obtaining trading information), confirming that claiming privilege against self-incrimination can be a reasonable excuse for non-compliance.
That said, the privilege will not usually apply where the documents requested by the SFC are pre-existing materials that have existence inde - pendent of the will of the person claiming the privilege. 6.2 Undermining the Privilege Over Communications Exempt From Discovery or Disclosure Privilege will not protect anything said or done to further a crime. If communications that would otherwise be pro - tected by legal professional privilege are made to further fraud, then the disclosing party cannot assert legal professional privilege. To trigger the exception, there must be a definite charge of fraud or illegality. Fraud here is used in a rela - tively wide sense, encompassing general iniquity and civil fraud. Therefore, legal professional privilege does not extend where, for example, a solicitor is con - sulted on how to carry out an illegal act. It is also worth noting that privilege is not lost if the purpose of the document was to ask, or warn against, the results of contemplated acts.
7. Special Rules and Laws 7.1 Rules for Claiming Punitive or Exemplary Damages
The general objective of punitive or exemplary damages is to punish, deter and denunciate (Allan v Ng & Co (a firm) [2012] 2 HKLRD 160). It is not therefore possible to claim punitive or exemplary damages as a form of compensation. There are three situations where punitive or exemplary damages may be awarded:
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