Hong Kong

Independent Hong Kong law firm Hugill & Ip is delighted to announce the promotion of Raphael Wong to Partner, effective from 1st June. This well-deserved advancement recognises Raphael's exceptional contributions to the firm's family law and private client practices, where he has distinguished himself as an advocate for clients and a specialist in navigating complex matrimonial and children matters. A trusted expert in Family Law With extensive experience in high-conflict family disputes, Raphael Wong has developed a reputation as a capable and strategic family lawyer – often recognised as future star in many international legal directories. His practice encompasses all aspects of family law, with particular expertise in high-net-worth and complex financial proceedings, cross-border and custody disputes. Raphael is known for his insightful approach to sensitive matters, regularly advising on cases involving multijurisdictional assets, inheritance provisions for financial dependants, guardianship and mental capacity. His deep understanding of Hong Kong's family law framework, combined with his tactical negotiation skills, enables him to secure optimal outcomes whether through litigation or settlement. Beyond financial disputes, Raphael has built a robust practice in children law, handling contentious relocation applications, and cases involving parental alienation and adoption. His nuanced understanding of child welfare principles and his ability to navigate emotionally charged situations have made him a sought-after advisor for parents and guardians. Recognition from firm leadership Senior partners at Hugill & Ip have warmly endorsed Raphael's promotion, highlighting his legal prowess and dedication to clients. Caroline McNally, Partner & Head of Family Law highlighted: "Raphael's promotion is richly deserved. He combines razor-sharp legal analysis with genuine empathy for clients during what is often the most challenging period of their lives. His ability to distil complex financial scenarios into clear legal strategies is exceptional, and he has been at the centre of some of our most high-profile family cases." Alfred Ip, Partner & Head of Private Client added: "Raphael stands out as a lawyer who truly understands the human element behind every legal dispute. His promotion reflects not just his technical mastery of family law, but his ability to guide clients through emotionally fraught situations with wisdom and discretion." Adam Hugill, Managing Partner concluded: "Raphael embodies everything we value at Hugill & Ip – creative problem-solving, an unwavering commitment to client service and compelling advocacy. His elevation to partner strengthens our position as one of Hong Kong's premier family law and private client practices." Professional standing and community engagement Raphael Wong's expertise is frequently sought by media outlets commenting on developments in Hong Kong family law. He has been quoted in publications, such as Hong Kong Economic Times and Ming Pao Daily, on issues ranging from prenuptial agreements to the recognition of foreign divorces in Hong Kong courts. An active member of the legal community, Raphael regularly contributes to professional development initiatives and pro bono work. His thought leadership extends to writing on emerging trends in cross-border family disputes and children matters. What sets Raphael apart is his ability to balance robust advocacy with practical solutions. Clients appreciate his straightforward advice, calm approach and his commitment to achieving resolutions that protect both their legal rights and personal wellbeing. His promotion reflects the firm's confidence in his ability to continue delivering this high standard of representation. As Hugill & Ip continues to expand its family law practice, Raphael's promotion ensures the firm remains at the forefront of Hong Kong's family law landscape. His combination of technical expertise and client-focused service perfectly aligns with the firm's commitment to providing practical and compassionate legal solutions for complex family matters.

It’s thrilling to share some exciting news – Hugill & Ip is moving! A new week, a new day: everyone at the firm be settling into our new home on an entire floor of Six Pacific Place, part of the Swire Properties portfolio. This move represents more than just a change of address. It's about creating a space that truly reflects who Hugill & Ip is as a firm – one that blends professional excellence with personal connections. A space designed with purpose Hugill & Ip partnered with Area-17 Architecture & Interiors, the renowned Italian design studio founded in Florence, to craft an office that tells our story. With their international perspective (from their roots in Italy to projects across Asia) and keen understanding of how spaces shape interactions, they've helped the firm create something unique. The design subtly weaves together: Italian elegance with Hong Kong's dynamic energy of its icons Warm, approachable materials that feel both professional and welcoming Smart, sustainable solutions that align with Swire Properties' commitments to ESG standards "It's been fascinating to see how Area-17 translated our firm's personality into physical space," shares Adam Hugill. "They understood immediately that we wanted somewhere that would feel both impressive and inviting – where serious work happens but never feels stuffy. The move isn’t just about aesthetics: it’s a strategic step forward. With room for expanding teams, advanced tech integrations, and client-friendly meeting spaces, the new office is designed to support Hugill & Ip’s next phase of growth." Why this matters For those who've worked with the firm before, you'll find the same Hugill & Ip approach – just in a space that better supports how they serve clients and their own workforce: Thoughtful meeting areas designed for real conversation, not just formal presentations Spaces that adapt to how you want to work – whether that's a quiet discussion or a collaborative session All the little touches (yes, including proper coffee) that make working together a pleasure As Caroline McNally puts it: "The best legal solutions come from really understanding people – and now we'll have a space that helps those connections happen naturally. The design team and   contractors that lead the project helped us create somewhere that's unmistakably professional but doesn't take itself too seriously." The Hugill & Ip approach  As Alfred Ip expressed: “What sets us apart? For years, we've built lasting relationships through our work in both corporate and private client matters - not by offering cookie-cutter solutions, but by truly understanding what each client needs. Our team thrives on tackling challenges with creativity and collaboration, always putting relationships first. This move is the natural next step in that journey - a space designed to reflect how we work best: intelligently, personally, and with genuine care for every case.” A new place to foster collaboration! Rather than a traditional grand opening, Hugill & Ip will be hosting a series of small personal gatherings in the coming months. Because after all, that's how the best relationships are built – through real conversations in comfortable spaces. Watch this space for upcoming events the firm is planning to host in the next few months – the whole team can't wait to welcome everyone to their new home and show you the new Hugill & Ip Dragon Gate!

Growing from USD 700 billion in 2023 to USD 3.2 trillion by 2030, the XaaS (Anything as a Service) market signifies a monumental shift in global business operations.[1] XaaS, short for “Anything as a Service”,encompasses a vast array of subscription and pay-per-use offerings delivered via the cloud—providing consumers with unmatched flexibility, scalability, and accessibility. However, while a surge in XaaS investments promises new revenue streams, it also introduces significant legal challenges for consumers. Dissecting the dual-edged nature of XaaS, we first underscore its transformative impact on businesses in the service economy; we then delve into the legal and regulatory obstacles, such as data privacy compliance, intellectual property ownership, and contractual complexities that must be overcome by consumers. With XaaS evolving into a mega-trend, legal practitioners must move beyond mere compliance, positioning themselves as strategic partners to help businesses thrive in this dynamic and uncertain terrain. Business Boon: How XaaS Transforms Performance Flexibility, Scalability, and Accessibility XaaS is singularly advantageous for startups and SMEs, providing access to advanced, enterprise-grade tools without significant upfront investments, which enables better budget and cash flow management. XaaS spans a broad spectrum of models—from Software as a Service (SaaS) to emerging concepts like AI-as-a-Service (AIaaS) and Vertical SaaS tailored to specific industries. These models enable businesses to scale resources up or down based on demand, replacing large upfront capital expenditures (CapEx) with predictable and scalable operational expenditures (OpEx). For example, AI-as-a-Service platforms allow businesses to leverage machine learning algorithms for fraud detection, customer analytics, and operational efficiency without the need to invest in costly specialized infrastructure. Similarly, Infrastructure-as-a-Service (IaaS) providers eliminate the need for on-premises infrastructure, offering scalable cloud computing solutions on a pay-per-use basis. Industry-driven Innovation Emerging models like Vertical SaaS are revolutionizing industries by delivering tailored solutions. Unlike generic SaaS platforms, Vertical SaaS caters to the specific needs of sectors such as automotive, manufacturing, and telecommunications. In the automotive sector, Vertical SaaS platforms support real-time fleet management while ensuring compliance with cybersecurity standards. In telecommunications, SaaS solutions enable scalable network infrastructure optimized for 5G deployment. These tailored solutions lower barriers to innovation, enhance workflow efficiency, and increase competitiveness. However, this very customization also introduces industry-specific legal complexities. Legal Challenges of XaaS: Why They Matter While XaaS offers immense commercial potential, unresolved legal risks could undermine its benefits. 1. Data Privacy and Security Storing and transferring sensitive data across multiple jurisdictions exposes XaaS services to significant compliance challenges, especially with varying global regulations like the General Data Protection Regulation[2] (“GDPR”). The cross-border nature of these services often involves opaque and intensifying scrutiny over data handling practices, leaving businesses vulnerable to penalties and reputational damage. In the landmark Schrems II decision[3], the European Court of Justice invalidated the EU-US Privacy Shield, which had previously facilitated cross-border data transfers between the EU and the US, leaving businesses working urgently to comply with the GDPR. For XaaS consumers, this means stricter scrutiny over how and where their data is stored. Non-compliance with GDPR can result in fines of up to 4% of global turnover[4], alongside reputational damage and loss of customer trust. For businesses in highly regulated industries like finance, the risks are more pronounced. Failure to meet privacy standards may expose sensitive customer data, disrupt operations and lead to costly litigation— the stakes are high. The Capital One Data Breach Litigation[5] further demonstrates these vulnerabilities. A misconfigured firewall in a cloud environment exposed millions of customer records, triggering questions about the shared responsibility model between XaaS providers and consumers. Data is the lifeblood of modern businesses. Without legal safeguards, businesses face disproportionate risks when providers fail to ensure adequate security controls that could jeopardize their reputation and bottom line. Practical Legal Solutions: i. Incorporate Robust Data Protection Clauses: Contracts should specify safeguards like encryption, regular security audits, data localization, breach notification protocols, and clearly state who owns the data. Employing Standard Contractual Clauses (SCCs) can facilitate compliance with GDPR for cross-border data transfers. ii. Strengthen Vendor Accountability: Contracts should impose strict obligations on third-party vendors and suppliers to implement robust cybersecurity practices, restrict third parties’ access to sensitive data and adhere to applicable regulations. This ensures that businesses are protected from vulnerabilities introduced through third-party relationships. iii. Allocate Liability for Data Breaches: Indemnification clauses should hold XaaS providers accountable for security failures. High-profile cases like the Capital One breach demonstrate the critical importance of clearly allocating liability in contracts, ensuring providers are responsible for damages caused by negligence or non-compliance. 2. Intellectual Property Ownership Intellectual property ownership is a key issue and critically important in XaaS agreements. Unlike traditional software licenses, XaaS agreements often allow service providers to retain rights to derivative works or customizations developed for clients, potentially blurring the boundaries of IP ownership between creators and users. Intellectual property is often a business’s most valuable asset. Yet, ambiguities in XaaS agreements could greatly erode a company’s ability to monetize its business innovations, weaken its competitive edge, and trigger costly lawsuits. In SAS Institute Inc. v. World Programming Ltd.[6], the European Court of Justice held that replicating software functionality, such as syntax formats and output design styles, without copying source code, did not infringe copyright. This highlights that laws in copyright alone cannot provide adequate protection to functionality in XaaS. Further, limitations in copyright laws to protect software was demonstrated in another copyright infringement case, Google LLC v. Oracle America., Inc.[7] Although the U.S. Supreme Court ruled that Google’s use of Oracle’s APIs constituted “fair use” due to its transformative nature and its role in fostering innovation, the case highlights potential IP ownership issues when there is an integration of  third-party software or APIs, particularly when XaaS agreements are vague or silent on these usage rights. Further, in Oysterware Ltd v Intentor Ltd and others[8], the Hight Court highlighted that a copyright infringement claim must clearly identify the aspects of the software application in which copyright protection is claimed, and the way its copyright was infringed upon. If the software is purely an adaptation of off-the-shelf software toolkits, it is challenging to establish subsistence and infringement of copyright. Therefore, the Plaintiff’s copyright infringement claim was dismissed. Practical Legal Solutions: i. Negotiate Clear Ownership of Customization and Derivative Works: When businesses rely on XaaS platforms to develop proprietary materials, contracts must clearly define ownership of IP created on XaaS platforms. For instance, a telecommunications company using a Platform-as-a-Service (PaaS) solution to create network optimization software should secure exclusive rights to the resulting IP. ii. Incorporate Industry-Specific IP Protections: Different industries face unique IP challenges, and agreements should address these concerns. In technology, media, and telecommunications (TMT), contracts should focus on safeguarding monetizable innovations and licensing rights. In manufacturing, agreements must secure ownership of operational data generated by XaaS platforms to protect strategic assets. Tailoring IP clauses to industry-specific priorities mitigate risks and aligns contracts with business objectives. 3. Contractual Complexity in Service-Level Agreements (SLAs) SLAs, the backbone of XaaS contracts, define performance metrics, uptime guarantees, and remedies for non-compliance between XaaS users and service providers. However, vague or overly technical SLAs expose businesses to substantial risks. The notorious 2020 Amazon Web Services (AWS) outage, which was caused by a failure in its Kinesis service, basically brought down the internet and disrupted the operations of major platforms like Netflix and Spotify. It illustrates how a single failure on the part of cloud providers can massively cripple business operations, resulting in a major loss in revenue for consumers. Fundamentally, contractual remedies limited to service credits often fail to compensate for the full extent of financial or reputational losses, as well as ensuring operational continuity. If SLAs are weakly negotiated and service-level obligations are unclear, businesses may struggle to enforce uptime guarantees or secure meaningful remedies for prolonged outages. On the other hand, in Delta Air Lines, Inc. v CrowdStrike, Inc.[9], SLAs with clearly defined service-level obligations help mitigate service providers from suffering financial losses. The case involves an incident which caused a cancellation of 7,000 flights within the five days following an IT outage. However, it was difficult to fully prove service providers liable for the outage due to protections such as clearly defined liability caps in the SLAs. Therefore, even if Delta Air Lines succeeded in the action, it may only be compensated with nominal damages, which was possibly outweighed by the legal and judicial costs of pursuing after the service provider. Practical Legal Solutions: i. Enforce Clear Performance Metrics with balanced terms: SLAs may include well-defined, measurable terms for service levels, such as “99.99% uptime guarantees”, response times, availability, data recovery timelines, and capacity thresholds. At the same time, SLAs should reflect commercial priorities by inserting liability caps, termination rights, and remedies that go beyond service credits to adequately compensating for financial or reputational losses, particularly for mission-critical services. ii. Employ Seamless Exit Strategies: Contracts must include provisions for data migration and operational continuity upon termination, ensuring businesses can transition to alternative providers without disruption. iii. Address Subcontractor Risks: To avoid liability gaps, subcontractors must adhere to consistent obligations, including performance standards and data protection measures, as outlined in the SLA. Emerging Trends in XaaS As XaaS continues to redefine the business landscape, legal practitioners representing consumers are playing an increasing role in tackling challenges from emerging trends, shaping the future of the industry: i. AI-as-a-Service (AIaaS): AI-driven XaaS platforms present risks including algorithmic biases and errors in automated decision-making, which may lead to legal challenges, such as biased hiring algorithms under employment law. Legal practitioners should shift from relying on indemnity clauses to adopting proactive measures, ensuring that AIaaS providers not only offer comprehensive documentation for transparency in AI processes, covering algorithm functions and data ethics, but also provide educational training and support for end-users. This holds AIaaS providers accountable for any unfair outcomes, ultimately protecting consumers’ interests. ii. Sustainability and ESG: With growing emphasis on environmental, social, and governance (ESG) goals for corporates, businesses may demand sustainable practices from their XaaS providers. To meet consumer and investor expectations, legal practitioners may incorporate provisions that promote ESG compliance, requiring providers to report on environmental impact metrics (e.g. energy consumption, carbon emissions, resource optimization, and waste reduction). iii. Multi-Cloud and Dynamic Pricing Models: As businesses embrace multi-cloud and hybrid environments to avoid vendor lock-in, XaaS providers must ensure seamless integration across platforms. These setups also bring unpredictable costs due to dynamic pricing models based on usage. To prevent cost overruns, legal practitioners should negotiate clear pricing structures, caps on variable fees, and transparency in cost escalations, while also addressing interoperability and service continuity to manage multi-cloud complexities. The Road Ahead: A Strategic Imperative XaaS is more than a technological innovation—it is a paradigm shift in how businesses increasingly operate in the digitalisation and servitisation of the economy. However, the promise of flexibility, scalability, and accessibility comes with significant risks that must be resolved through commercially-oriented legal solutions. Ultimately, XaaS is a double-edged sword. Through mitigating issues in data privacy, intellectual property and crafting airtight SLAs, legal practitioners play a pivotal role in shaping a more balanced XaaS ecosystem — one that not only captures key commercial opportunities, but manages risks, maintains integrity, and maximizes resilience. Author: Jacqueline Kwong Footnote [1]  https://www.fortunebusinessinsights.com/everything-as-a-service-xaas-market-102096 [2] Regulation (EU) No. 2016/679 of the European Parliament and of the Council of 27 April 2016 laying down the General Data Protection Regulation [2016] OJ L119 [3] Case C-311/18, Data Protection Commissioner v Facebook Ireland and Maximillian Schrems, ECLI:EU:C:2020:559 (July 16, 2020). [4] https://gdpr-info.eu/issues/fines-penalties/ [5] re Capital One Consumer Data Security Breach Litigation MDL No.1:19md2915 (AJT/JFA) (E.D. Va. Jun. 25, 2020) [6] Case C-406/10, ECLI:EU:C:2012:259 (2 May 2012) [7] 141 S. Ct. 1183 [2021] [8] Oysterware Ltd v Intentor Ltd and others [2020] EWHC 2125 (Ch) [9] Case 24CV013621 (Ga.Super. 25 Oct 2024)

Estate administration can be a complex and time-consuming process, particularly when a beneficiary is missing. Executors, Administrators, and trustees have a legal duty to distribute an Estate according to the deceased’s Will or intestacy laws, but when an heir cannot be found, the process may be stalled indefinitely. To address this issue, courts in Hong Kong, like those in other common law jurisdictions, may grant a Benjamin Order, a legal mechanism that allows Estate Administrators to proceed with distribution on the assumption that certain events have or have not happened, such as the missing beneficiary is deceased. The recent case of HCMP 1750/2024 in the estate of LIN FAT WONG also known as WONG LIN FAT (黃連發)[1], illustrates how Benjamin Orders are applied in Hong Kong. What is a Benjamin Order? A Benjamin Order is a court order that permits the distribution of an Estate on the assumption that certain events have or have not happened, such as the missing beneficiary is deceased. The name originates from the English case Re Benjamin [1902], in which a beneficiary could not be found, and the court allowed the estate to be distributed as if he had died. This order does not extinguish the missing beneficiary’s rights – if they later reappear, they may still have a claim, but it protects executors and trustees from liability, ensuring that they are not personally responsible for distributing the estate based on reasonable assumptions. Benjamin Orders are particularly useful in situations where a beneficiary has been missing for many years, and exhaustive searches have failed to locate them. They ensure that estates do not remain indefinitely frozen due to unresolved uncertainties. However, courts do not grant such orders lightly; executors must demonstrate that they have made reasonable and diligent efforts to locate the missing beneficiary before seeking legal relief. How HCMP 1750/2024 illustrates the application of Benjamin Orders in Hong Kong The case of HCMP 1750/2024 provides a recent example of how Hong Kong courts approach estate distribution when a beneficiary is missing. Wong Lin Fat passed away in 1999, leaving behind a will that provided for his second wife, Man Mei Kam (文美金) (“MMK”). Under the will, MMK was entitled to receive rental income from the Deceased’s properties for the rest of her life. However, since Deceased’s passing, she had seemingly vanished, and no one had been able to locate her for over 25 years. The co-administrators of the Estate undertook extensive efforts to trace her whereabouts. They searched official probate and death records in both Hong Kong and the United Kingdom, placed advertisements in multiple newspapers, and even visited her last known residence in London. Despite these comprehensive efforts, they were unable to obtain any information about her whereabouts or confirm whether she was still alive. Given that MMK would have been 82 years old if alive and had made no claims on the estate in the decades since Wong’s passing, the administrators applied for a Benjamin Order, requesting permission to distribute the Estate on the assumption that she had passed away without heirs. After reviewing the evidence, the Court granted the Benjamin Order, allowing the Estate to be distributed accordingly. The ruling acknowledged that the administrators had made sufficient and reasonable efforts to locate MMK and that, given the passage of time, it was reasonable to assume that she was deceased. The decision finally brought an end to 25 years of uncertainty, ensuring that the Estate could be settled and distributed to the remaining beneficiaries. Other perspectives on Benjamin Orders While the Wong Lin Fat case demonstrates how Benjamin Orders work in Hong Kong, courts do not grant such orders automatically. Two other cases, Yu Yee Luen & Another v So Yu Lung & others [2022][2] and HSBC Trustee (Hong Kong) Limited, the sole executor and trustee of the Deceased's Estate v Lam Moon Wing & others [2023][3], provide further insights into the legal and practical factors courts consider when assessing whether to grant a Benjamin Order. In Yu Yee Luen & Another v So Yu Lung & others [2022] HKCFI 2403, the Court emphasized the importance of due diligence in searching for a missing beneficiary. The case involved an Estate where one of the beneficiaries had not been seen or heard from in many years and the executors had undertaken extensive efforts to locate the individual. The Court ruled that executors must demonstrate that they have exhausted all reasonable avenues and no evidence shows that further efforts will yield positive results. It also highlighted that the passage of time is a critical factor, as courts are more inclined to grant such an order when a beneficiary has been missing for an extended period. Furthermore, the Court recognized that the cost of further searches must be weighed against the likelihood of success. If additional searches would be disproportionately expensive with little chance of yielding results, the court may approve estate distribution. Similarly, in HSBC Trustee (Hong Kong) Limited, the sole executor and trustee of the Deceased's Estate v Lam Moon Wing & others [2023] HKCFI 199, the court reinforced the principle that trustees must balance the rights of missing beneficiaries with the interests of other heirs. The Court ruled that investigations should be proportionate, meaning that if a beneficiary has been missing for decades and further searches are unlikely to succeed, courts are inclined to grant relief. Together, these cases establish that while courts require thorough and well-documented searches before granting a Benjamin Order, they also recognize that estate matters must eventually be resolved. Tips for Executors or Administrators applying for a Benjamin Order For executors or trustees seeking a Benjamin Order, thorough documentation and diligent efforts are key. Courts will only grant such an order if they are convinced that all reasonable steps have been taken to locate the missing beneficiary. These steps typically include but not limited to: Conducting comprehensive searches of government records, probate registries, and financial institutions; Contacting family members, known associates, and legal representatives who may have information on the missing beneficiary’s whereabouts; Placing advertisements in newspapers or online to invite the missing beneficiary to come forward; Engaging professional investigators if the case warrants more extensive searches; and Maintaining detailed records of all steps taken, as courts will scrutinize these efforts before granting relief. Executors should also consider seeking legal advice early in the process to ensure compliance with court requirements. If all reasonable efforts have been exhausted and the beneficiary remains untraceable, an application for a Benjamin Order may be the best course of action to resolve the estate efficiently and fairly. Final Thoughts Benjamin Orders play a crucial role in estate administration by providing a legal pathway for distributing assets when a beneficiary is missing. The Wong Lin Fat case (HCMP 1750/2024) illustrates how Hong Kong courts apply this principle, ensuring that executors act responsibly while preventing Estates from being indefinitely stalled. The Yu Yee Luen and Lam Moon Wing cases further clarify the due diligence required before such an order is granted and emphasize the balance between fairness and practicality. For executors and trustees, these cases underscore the importance of thorough searches, meticulous documentation, and legal guidance. Courts will not grant a Benjamin Order lightly, but they recognize that estate matters must eventually be settled. By following established legal principles, estate administrators can navigate these challenges while ensuring that the deceased’s wishes are fulfilled and beneficiaries receive their rightful inheritance. Author: Alfred Ip [1] [2024] HKCFI 2686 [2] [2022] HKCFI 2403 [3] [2023] HKCFI 199