Following the passing of the Apology Bill on 13 July this year, Hong Kong has become the first jurisdiction in Asia to enact apology legislation.
The objective of the new Apology Ordinance (“the Law”), first considered in the wake of Hong Kong’s Lamma Ferry disaster in 2012, is to “promote and encourage the making of apologies with a view to preventing the escalation of disputes and facilitating their amicable resolution”. Importantly, the effect is that an apology will not “constitute an express or implied admission of the person’s fault or liability in connection with the matter, and must not be taken into account in determining fault, liability or any other issue in connection with the matter to the prejudice of the person”. This is very different from the current position where an apology may be admissible as evidence in civil proceedings for establishing legal liability.
An apology is an expression (whether oral, written or by conduct) of the person’s regret, sympathy or benevolence in connection with the matter. For example:
• In a mobile phone product recall, directors and senior management would be able to apologise and provide refunds to the customers in a timely manner as a gesture of goodwill
• Directors and senior management of a company can offer an apology in a timely manner for any mis-selling of a financial product
• If a lawyer negligently provides a wrong legal advice, the lawyer can apologise almost immediately to the client and suggest remedies for the problem
The Law applies to an apology made by a person on or after the commencement date of the Law (1 December 2017) regardless of whether the matter arose before, on or after that date, or applicable proceedings concerning the matter began before, on or after that date. Thus, the Law does not have retrospective effect in relation to apologies made before its commencement date.
Applicable proceedings include judicial, arbitral, administrative, disciplinary and regulatory proceedings. The Law does not extend to criminal proceedings, the rationale being that criminal proceedings are not private proceedings and cannot be settled between parties; they are proceedings commenced by law enforcement authorities for the protection of the public.
The Law does not apply to:
• An apology made by a person in a document filed or submitted in applicable proceedings;
• An apology made by a person in a testimony, submission, or similar oral statement, given at a hearing of applicable proceedings; or
• An apology adduced as evidence in applicable proceedings by, or with consent of, the person who made it
These exclusions acknowledge that a party may choose to make an apology in court documents intending that apology to be considered in the proceedings, or agree to admit as evidence an apology made outside of the proceedings.
However, a decision maker (i.e. a person in authority to decide in a court, tribunal, disciplinary, regulatory or arbitral proceeding) may admit a statement of fact containing an apology as evidence in proceedings only if he/she is satisfied that it is “just and equitable to do so, having regard to the public interest or the interests of the administration of justice”.
A disincentive to making an apology may be the potential implications for insurance cover. The Law aims at removing such disincentive in apologising, by expressly providing that an apology does not void or affect any insurance cover, or in any way affect compensation under an insurance contract or indemnity, regardless of whether the insurance contract or indemnity was entered into before, on or after the commencement date of the Bill. Insurers cannot contract out of the Law.
The Law is intended to reduce general reluctance to apologise for fear that it will be an admission of liability. Under the protection that apologies cannot be used in civil and disciplinary proceedings, subject to the “just and equitable” exception, it is likely to promote negotiation and dialogue between parties following the expression of an apology to affected persons. Thus a party will be able to convey condolences or sympathy to the other party, without being solely focused on whether an apology amounts legally to an admission of fault or liability.