HONG KONG SAR, CHINA Law and Practice Contributed by: George Lamplough, Vanessa Cheng and Curtis Pak, Holman Fenwick Willan
• in cases of oppressive, arbitrary or uncon - stitutional actions by the servants of govern - ment; • where the defendant’s conduct was “calcu- lated” to make a profit for themself; and • where expressly authorised by statute. A case of fraud may fall within the second cate - gory above, and therefore punitive or exemplary damages may be awarded. It is important to note that exemplary damages are a remedy of last resort. Exemplary damages should be moderate and will only be awarded if the remedies available to the court are inad - equate to punish and deter the defendant (Allan v Ng & Co). As a matter of procedure, the plaintiff must spe - cifically plead their claim for exemplary dam - ages, together with the facts on which they rely (RHC Order 18 Rule 8(3)). 7.2 Laws to Protect “Banking Secrecy” Common Law Duty The leading case on banks’ duty of secrecy is Tournier v National Provincial and Union Bank of England (1924) 1 KB 461, where Atkin LJ defined the extent of the duty as going beyond the bal - ance in the account, extending at least to all transactions that go through the account, and any securities. He added that the duty extends to information obtained from other sources than the customer’s account if the information was obtained because of the relationship between banker and customer. The duty persists after the closure of the account. However, the duty of confidence that a bank owes to its customer is not absolute and is quali - fied where:
• disclosure is required by law; • there is a duty to the public to disclose; • the interests of the bank require disclosure; and • disclosure is made further to express or
implied customer consent. Statutory Duty of Secrecy
Section 120 of the Banking Ordinance (Cap 155) sets out banks’ statutory duty to preserve the secrecy of customer affairs and circumstances where banks may share customer information with regulators. Section 120(5) provides that the duty of secrecy does not apply in certain circumstances, such as: • disclosure of information during criminal proceedings; • disclosure to the ICAC and SFC; and • disclosure for anti-money laundering and counter-terrorist financing purposes. Code of Banking Practice The Code of Banking Practice sets out certain requirements in relation to security of customer information. For example, the Code provides guidance on keeping customers’ affairs private and confidential and electronic banking services. Personal Data (Privacy) Ordinance (Cap 486) (PDPO) Additionally, a bank is required to keep certain customer information private under the PDPO. Obtaining Evidence in Fraud Claims Banker’s record – Evidence Ordinance (Cap 8) (EO) If the bank is not a party to the proceedings, a court order is required to compel production of
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