The recent Court of Appeal judgment in Sky King Machinery Engineering Ltd v China Harbour Engineering Company Ltd [2026] HKCA 11 marks a significant milestone for the construction and engineering industry regarding the protection of intellectual property. The Court of Appeal has affirmed that functional, industrial buildings and architectural works — not just “fine art” — enjoy robust copyright protection.
The case concerned “Public Fill Sorting Facilities” (“PFSF“) – a substantial installation used to efficiently sort large volumes of construction waste into materials suitable for use in land reclamation, capable of conveying and depositing the sorted materials from land directly onto sea barges for onward transport.
The Plaintiff is a local boutique engineering and design firm, who created a set of highly technical construction plans PFSF used in the Penny’s Bay / Hong Kong Disneyland land reclamation project in 2003.
The Defendant, part of a publicly listed engineering and construction group with global business presence, was the main contractor responsible for an artificial island for the Hong Kong-Zhuhai-Macau Bridge (“HZMB“), which was completed in 2018. The land reclamation materials used to create the artificial island were to be sourced from PFSF.
After a 10-day trial on liability in the Intellectual Property List, the trial judge held that in the course of the HZMB project, the Defendant had copied the Plaintiff’s original 2003 PFSF construction plans and physical PFSF installation, thereby infringing the Plaintiff’s copyright ([2023] HKCFI 1516).
The Defendant appealed against the decision and advanced 31 grounds of appeal.
On 2 February 2026, the Court of Appeal dismissed all grounds of appeal and upheld the trial judge’s decision ([2026] HKCA 11).
Key Takeaways
- Multi-Factorial Assessment in Intellectual Property Cases: The Court of Appeal affirmed and reiterated that, as a matter of principle, the appellate court will not lightly intervene in a Multi-Factorial Assessment of the trial judge – i.e. a decision on a question of mixed law and fact, requiring the judge to apply a not altogether precise legal standard to a combination of factual features of varying importance, as a matter of the judge’s impression and value judgement. The question of whether there was substantial reproduction amounting to infringement of copyright is precisely a Multi-Factorial Assessment, which the appellate court will not disturb unless the judge has made an error of principle (even if the appellate court itself would have come to a different conclusion).
- No Artistic Quality Threshold for Buildings / Works of Architecture: The Defendant argued that for the Plaintiff’s physical PFSF installation to qualify as a “work of architecture” category of “artistic work” for copyright protection under s.5 of the Copyright Ordinance (Cap. 528), it must have some artistic quality. After a comprehensive examination of the legislative history of successive copyright legislation in the United Kingdom dating back to 1911 and in Hong Kong, the Court of Appeal held that a building / work of architecture qualifies for copyright protection irrespective of artistic quality.
- Ownership of Copyright between Creator and Scribe: The judgment also draws a sharp line between authorship and technical drafting. In this case, whilst a third party was involved in the production of finalised digitalised versions of construction plans, the Court of Appeal agreed with the trial judge’s findings that they were mere “scribes” following the instructions of the Plaintiff. This distinction is crucial for sub-contracting: simply being the person who “pushed the pen” (or the mouse) to create a professional drawing does not grant the person authorship (and copyright ownership) if he/she was merely executing someone else’s instructions.
- No Duty to Address Each and Every Argument: The Court of Appeal also provided helpful guidance on the extent to which a trial judge had a duty to address arguments raised by parties. It held that it is sufficient that the judge gave adequate reasons to explain how the evidence has been weighed, and recognised that it is an impossible task (and very often it would do more harm than good) if a judge has to rebut each and every argument and piece of evidence in minute detail.
Read the Judgment here:
https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=176867.
Christopher Chain and Stephanie Wong acted for the Plaintiff at the trial.
Christopher Chain SC, Stephanie Wong and Martin Lau acted for the Plaintiff on appeal.
