The Hong Kong Notarial System

Introduction

What is a Hong Kong notary public? What do notaries do in Hong Kong? Why are they important to the city’s role as an international banking and commercial centre?

Imagine that you are a businessman in Spain and you want to enter into a contract with a Hong Kong company. How do you know that the contract has been properly signed on behalf of the Hong Kong company? If you are a businessman in Hong Kong and you want to sue a company in Malaysia. How does the Malaysian court know that certain documents that have to be produced into court proceedings are true and correct copies of the Hong Kong documents? What do you do if you are an international bank in London and you are taking a mortgage against a vessel registered in Panama with directors in Hong Kong? How do you know that the mortgage documents which are vital to your security have been properly signed by the correct people in Hong Kong and that their signatures have not been forged?

The answer to all of these questions is that a Hong Kong notary public can provide the vital link between documents executed or originating in Hong Kong for use in international proceedings or transactions where it is essential that the due execution and correctness of those documents can be verified. The notary’s role is to make certifications of fact and law so that the relevant documents can be trusted by others whether in Hong Kong or overseas. Unlike a solicitor whose duty is to their client, the notary’s main responsibility is to the transaction itself. Usually, it will be an international party who will rely upon a notarial certificate.

An example in which I have recently been involved was where a Hong Kong company was being sued in Thailand. Needless to say, many tens of millions of United States dollars were at stake. So that the company concerned could defend itself in Thailand, its lawyers in Bangkok needed copies of constitutional documents of the Hong Kong company, an affidavit sworn by a director together with notarised powers of attorney appointing Thai lawyers. The notarisation could establish and verify that they were correct copies of the constitutional documents and that the signed documents had been properly executed by the person who was signing them. The documents then had to be legalised by the Thai Consulate so that the notarised documents would be admissible in proceedings in Thailand. I will deal with the link between a Hong Kong notarial certificate and its use overseas later in this article.

In order to prove authentication, most countries require commercial or personal documents which originate from, or are signed in a different jurisdiction, to be notarised before they can be officially used or recorded or before they can have any legal effect. In other words, the notary public in Hong Kong acts as an essential documentary, evidentiary and testamentary link between Hong Kong and other countries throughout the world. Given the city’s importance as a world trading and banking centre, you can see how important this role is.

Origin of the Notarial Profession

The Hong Kong notary public can trace its ancestry back to ancient Rome! The ability to read and write has long been cherished by societies through all recorded time. Today, most people are literate, but it was not always this way. Reading and writing was once the preserve of an elite who had been educated. It was no different in the Rome of antiquity. In Roman times, there were scribes who merely recorded facts and judicial proceedings. They were no more than copiers and transcribers.

The Romans, as befits a creative and ingenious people, developed a system of shorthand known as notae. It was a short step for the specialists who were adept at writing in the system to be called a notarius. Essentially, the notary in Roman times was originally somebody who could take down this shorthand and then transcribe it into a full-length written form. If we are looking for a more modern parallel, it was no more in effect than my first secretary in Hong Kong who was well practiced in shorthand. In those far-off days, she would take down my dictation and then type it up.

At the very beginning, the notary was no more than this though, over the course of time the function grew in importance. Written records became essential for the administration of government. The title of notary came to be used for registrars who were associated with important government officials.

In the centuries following the fall of the Roman Empire, the notary continued to be an important role. In continental Europe, these officials evolved into the notaries which still exist today in their civil law systems. I will come to the differing role which civil law notaries or, as some call them, “Latin” notaries perform later. In England, the system diverged went a different way. Some would say that this is true, even today! The common law developed along a separate path which lagged some way behind continental Europe in terms of a public official known as a notary.

Indeed, there was no concept of a notary in England until, as a result of the interaction of commerce and trade with notaries from continental civil law systems, it became evident that there was a real value to such a function. This culminated in 1279, when the Pope granted the Archbishop of Canterbury the right to appoint notaries. Following the Reformation, the link between the Pope and the English church was necessarily severed meaning that the Archbishop of Canterbury alone had power to appoint notaries. This is still the case today.

These historical facts have been garnered from Brooke’s Notary which is the leading English law textbook on notarial practice and I must thank Nigel Ready for his erudition.

As a result of this historical legacy, it can be said, quite legitimately and properly, that the practice as a notary public is the third and oldest branch of the legal profession as that term is embraced by the common law world.

The notary public in Hong Kong follows on from this fine and ancient tradition because, as a trading centre, the territory needed a functionary such as a notary to perform the scrutiny and evidentiary processes to validate the authenticity of commercial transactions and documents. However, as a result of the historical differences, whenever you see the phrase “notary public”, this only refers to common law notaries public and must not be mixed up with civil law notaries. Just to add to the confusion, there is a different system altogether in the United States and Canada.

In next month’s issue, we will explore different notarial systems around the world.

Former President of Hong Kong Society of Notaries, Senior Partner of Ince & Co.