Sorry Not Sorry

“Sorry, not sorry” – what do you need to know about the apology legislation in Hong Kong?

On 13 July 2017, the Hong Kong Legislative Council (“LegCo”) passed the long-awaited Apology Bill. It came into effect on 1 December 2017. While other common law jurisdictions such as Australia have enacted apology laws, the Apology Bill is the first of its kind in Asia.

In Hong Kong, an apology could previously only be admitted in civil proceedings to establish legal liability. The Apology Ordinance (Cap. 631) (“Ordinance”) alters this position by precluding a person’s apology from constituting an admission of their fault or liability, even if it includes such admission. The Ordinance will help provide protection to those wishing to express regret and take the “sting” out of situations that have caused distress or even loss. Naturally, without this protection, many are cautious and hesitant in making apologies, worrying that their apologies or expressions of regret may have potential legal implications.

In this post, we summarise the key aspects of the Ordinance such as the meaning of an “apology”, the effect of an apology and its admissibility in evidence in applicable proceedings, as well as its implications on insurance and indemnity contracts.

What is an “apology”?

Under the Ordinance, “apology” is broadly defined to mean an expression of regret, sympathy or benevolence in connection with a matter, including an expression that they are sorry about the matter.

An apology (including an apology made on behalf of another person) may be:

  • oral, written or by conduct; and
  • partial (an expression of regret or sympathy) or full (one that includes an admission of fault).

Application of the Ordinance and its effect – applicable proceedings

Regardless of whether a matter arose or applicable proceedings concerning the matter began before, on or after the commencement date of the Ordinance, an apology made by a person on or after the commencement date of the Ordinance:

  • no admission of fault or liability – does not constitute an express or implied admission of their fault or liability in connection with the matter; and
  • inadmissible evidence must not be taken into account in determining fault, liability or any other issue to the prejudice of the apology maker, for the purposes of applicable proceedings.

“Applicable proceedings” mean:

  • judicial, arbitral, administrative, disciplinary and regulatory proceedings (whether or not conducted under an enactment); and
  • other proceedings conducted under an enactment.

Application of the Ordinance and its effect – limitation periods

Section 23 of the Limitation Ordinance (Cap. 347) (“Limitation Ordinance”) provides that the limitation periods for certain causes of action (for example, to recover land) may be extended by an acknowledgement of the claim in issue. The Ordinance provides that an apology will not constitute acknowledgement of rights of action and therefore will not extend the limitation periods for the purposes of section 23 of the Limitation Ordinance.

Application of the Ordinance and its effect – insurance and indemnity

An important component of the Ordinance is its effect on insurance and indemnity contracts. The Ordinance provides that regardless of whether an insurance or indemnity contact was entered into before, on or after the commencement date of the Ordinance, an apology will not void or otherwise affect any insurance coverage, compensation or other form of benefit for any person in connection with the matter under the contract, despite anything to the contrary in any rule of law or agreement.

When an apology will carry consequences

The Ordinance does not affect the following matters and an apology will carry consequences if it is:

  • made by a person in a document filed or submitted in applicable proceedings;
  • made by a person in a testimony given at a hearing of applicable proceedings;
  • adduced as evidence in applicable proceedings by, or with the consent of, the apology maker; and
  • made in criminal proceedings and other proceedings specified in the schedule to the Ordinance.

Additionally, the Ordinance will not affect discovery or a similar procedure for the disclosure or production of documents in applicable proceedings; the operation of the provisions involving apologies in the Defamation Ordinance (Cap. 21 of the Laws of Hong Kong); and the operation of the Mediation Ordinance (Cap. 620 of the Laws of Hong Kong), which provides that a mediation communication (which may contain an apology) may be disclosed for certain purposes, or admitted in evidence in proceedings, only with leave of a specified court or tribunal

The Ordinance also provides that in exceptional cases (and only if it is just and equitable to do so), the decision maker (meaning a court, a tribunal, an arbitrator or any other body or individual) may exercise a discretion to admit a statement of fact contained in an apology as evidence in the proceedings.

As a result, if you are making an apology, consider its content carefully, particularly if large numbers of people are involved.

Last word…

One of the hopes behind the Ordinance is to help incentivise people to make apologies, and ultimately prevent the escalation of the dispute into costly legal action.

After all, sorry is not the hardest word!

 

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