With the Apology Ordinance (Cap. 631) coming into operation on 1 December 2017, Hong Kong has become the first jurisdiction in Asia to enact apology legislation. The Ordinance does not have retrospective effect and applies only to an apology made on or after the commencement date.
The Ordinance is intended to facilitate resolution of disputes by promoting and encouraging the making of apologies.
Save for criminal cases and specified proceedings that are essentially fact-finding in nature, the Ordinance applies to a wide range of proceedings, including judicial, arbitral, administrative, disciplinary, and regulatory proceedings.
“Apology” is widely defined under the Ordinance so as to give an apology-maker sufficient flexibility in deciding on a suitable expression. It includes any expression of regret, sympathy or benevolence made by or on behalf of a person, whether it is oral, written or by conduct. The apology may also include admissions of fault or liability, and statements of fact.
Before the legislation was enacted, parties to a civil dispute might be reluctant to apologize, or simply to express sympathy or regret, for fear that an apology would be regarded as admission of fault or liability, especially where there were potential or ongoing legal proceedings.
The Ordinance now precludes an apology from being admissible in determining fault or liability, or any issue to the prejudice of the apology maker (subject to the court’s discretion to admit statements of fact as evidence in exceptional circumstances). The Ordinance expressly excludes its application to apologies made in documents filed in court or applicable proceedings, or those made orally at a hearing, given that a person who voluntarily made an apology in court documents would clearly intend the same to be considered in the proceedings.
There is also a provision which renders ineffective any term in an insurance contract that extinguishes or reduces insurance cover on ground that an apology was made.
While there may still be uncertainties concerning the application of the Ordinance, in particular, the decision-maker’s discretion to admit statements of facts in exceptional cases, the introduction of the Ordinance seeks to bring Hong Kong in line with the development in other jurisdictions, and to foster a culture of amicable dispute resolution.
However, whether the making of apologies can indeed facilitate settlement may depend on a number of factors, including the attitude and aim of the parties, and the nature of proceedings. For example, while an apology may have some implications in defamation claims or family disputes, it may not be of much significance in the commercial context.
It remains to be seen whether the Ordinance can serve its purpose to facilitate dispute resolution in Hong Kong, and how it will be applied in civil proceedings.