Hong Kong’s apology legislation, the first of its kind in Asia, was passed by the Legislative Council on 13 July 2017 and was published in the Gazette on 21 July 2017.
It is the culmination of a comprehensive review of the apology legislation in various jurisdictions and various academic articles. It seeks to remove disincentives in the way of making apologies, which may have otherwise prevented disputes from escalating or assisted in their amicable resolution.
The Apology Ordinance (the “Ordinance”) will apply to apologies made after the Ordinance comes into operation irrespective of when the related matter arose or when the applicable proceedings began. An “apology” is defined to mean an expression of regret, sympathy or benevolence, and includes an admission of fault or liability and any statement of fact. However, the Ordinance will not apply where the apology is in documents such as pleadings and witness statements submitted in applicable proceedings, where it is orally given at a hearing, or where it is adduced as evidence by or with the consent of the apology maker.
The three main areas of the Ordinance are:
1. Effect and Admissibility of an Apology in Applicable Proceedings
For the purpose of applicable proceedings, an apology will not constitute an admission of fault or liability and must not be taken into account in the determination of fault, liability or other issues to the prejudice of the apology maker. Evidence of the apology will not be admissible as evidence for such determination.
The reason for such protection is that previously there was no assurance under Hong Kong law that an apology could not be relied on as evidence of admission of fault or liability, and this inhibited people from making apologies.
However, a decision maker will have discretion to admit a statement of fact contained in an apology as evidence in exceptional cases (eg, where no other evidence is available), provided it is just and equitable.
The Ordinance will apply to judicial, arbitral, administrative, disciplinary and regulatory proceedings and other proceedings conducted under an enactment; disciplinary proceedings include proceedings of professional institutes and statutory bodies and disciplinary proceedings by way of non-statutory self-regulation by industry bodies. The Ordinance will not apply to criminal proceedings, proceedings of the Legislative Council and proceedings conducted under the Commissions of Inquiry Ordinance, the Control of Obscene and Indecent Articles Ordinance and the Coroners Ordinance.
The Ordinance will not affect discovery or similar procedures in applicable proceedings, the operation of provisions of the Defamation Ordinance dealing with permission to put in evidence an apology as a defence or in mitigation of damages, and the operation of the Mediation Ordinance.
2. Apology not an Acknowledgment under the Limitation Ordinance
Under s. 23 of the Limitation Ordinance, certain rights of action relating to land, personal property, debts, other liquidated pecuniary claim or personal estate are deemed to accrue on the date of acknowledgment.
The Ordinance will provide assurance that an apology does not constitute an acknowledgment within the meaning of the Limitation Ordinance, and the relevant limitation period will not be extended thereby.
3. Contract of Insurance or Indemnity not Affected
There were previously fears that clauses in insurance contracts that prohibit admission of fault may be relied on to repudiate liability. The Ordinance provides assurance by stipulating that insurance cover, compensation or other form of benefit under a contract of insurance or indemnity (whenever entered into) will not be voided or otherwise affected by an apology.