Hong Kong will be the first jurisdiction in the Asia Pacific Region to enact a legislation dealing with apology and its implications, being the Apology Ordinance (Cap 631)(the “Ordinance”).

The Apology Bill was passed in July this year and has taken effect on 1 December 2017. The object of the Ordinance is to promote and encourage the making of apologies for preventing the escalation of disputes and facilitating their amicable resolution.” An apology is defined broadly to mean, “an expression of the person’s regret, sympathy or benevolence relating to the matter, and includes, for example, an expression that the person is sorry about the matter.” The expression may be oral, written or by conduct, and includes any part of the expression that is “an express or implied admission of the person’s fault or liability” or “a statement of fact” relating to the matter. It will also include an apology made on behalf of the apologist.

Application of the Ordinance

Section 5 of the Ordinance delineates when the Ordinance will apply to an apology made. There appears to be no time restraint on when the apology was made, i.e. whether the apology was made on or after the commencement date of the Ordinance, whether the matter to which the apology relates to, or whether the Applicable Proceedings (as defined below) concerning the said matter, begin before, on or after the commencement date of the Ordinance. The Ordinance still applies. The Ordinance will apply to the government as well.

The Ordinance will not apply to an apology made in a document filed or submitted in the Applicable Proceedings, made in a testimony, submission, or similar oral statement, given at a hearing of the Applicable Proceedings, or adduced as evidence in Applicable Proceedings by, or with the consent of, the person who made it. There is a strict limitation on the application of the Ordinance to any apology that is “before the Court”, so an apology incorporated in such materials or evidence will be taken into account in the Applicable Proceedings, including in civil proceedings to establish legal liability. Furthermore, the Ordinance does not affect the operation of the Mediation Ordinance (Cap 620). An apology made in the context of mediation and its admissibility will be governed by the Mediation Ordinance and not by the Ordinance. Nor does the Ordinance affect the operation of section 3, 4 or 25 of the Defamation Ordinance (Cap 21), so the alleged defendant in a defamation suit can still avail himself of the relevant defence and mitigation of damages measures. The Ordinance does not affect discovery. Any document relevant to the Applicable Proceedings, albeit containing an apology, will have to be disclosed. Yet the mere fact that the apology in the document has been furnished in discovery will not render it automatically admissible before the Applicable Proceedings. Admissibility is still governed by section 5 of the Ordinance.

The Ordinance will only apply to the “Applicable Proceedings”, which mean judicial, arbitral, administrative, disciplinary and regulatory proceedings (whether conducted under an enactment), and other proceedings conducted under an enactment. The Ordinance will not apply to criminal proceedings, proceedings under the Commissions of Inquiry Ordinance (Cap 86), the Control of Obscene and Indecent Articles Ordinance (Cap 390) or the Coroners Ordinance (Cap 504).

Does “sorry” incriminate?

The gist of the Ordinance lies in sections 7 and 8(1). An apology made by a person relating to a matter in Applicable Proceedings:
Does not constitute an express or implied admission of fault or liability; and
Must not be taken into account in determining the fault, liability or any other issue in connection with the matter to the prejudice of the apologist, such as the appropriate remedies or sanctions to be imposed, or adjudication on issues of credibility.
i.e. an apology will not be admissible in evidence to the detriment of the apologist.

But there is a catch under sections 8(2) of the Ordinance:
– if in an Applicable Proceeding there is an exceptional case (e.g. where there is no other evidence available for determining an issue), the decision maker may exercise a discretion to admit a statement of fact contained in an apology as evidence, but only if the decision maker is satisfied that it is just and equitable to do so, having regard to all the relevant circumstances;
– “decision maker”, in relation to Applicable Proceedings, means the person (whether a court, a tribunal, an arbitrator or any other body or individual) having the authority to hear, receive and examine evidence in the proceedings.

One would say this is akin to the standard “just and equitable”, or “reasonableness”, test in law, which is an objective test in law. But there is no guarantee that it won’t dissolve into a subjective test in the exercise of the decision maker’s discretion. Furthermore, strictly speaking the decision maker can only admit “a statement of fact”, i.e. a fact, for determining liability. The “fact” itself should not point to the culpability of the apologist per se. How this exercise will be played out will have to be seen, especially that not all decision makers will be legally trained. One can see the streams of uncertainty meandering out from the Ordinance already.

Specific Scenarios

Insurance Cover

As a further protection measure, an apology made will not void or otherwise affect any insurance cover, compensation or other form of benefit for any person relating to the matter under a contract of insurance or indemnity. As such, the proffering of an apology will not deprive the apologist of any monetary cover he would otherwise be entitled for his benefit. This, will hopefully encourage the parties to make an apology and ameliorate the acrimony in a litigation.

Labour Disputes

Since the Ordinance applies to proceedings before the Labour Tribunal, it is hoped that this will prompt employers to proffer an apology to the aggrieved employees and to settle the proceedings in a more effective manner. This is particularly pertinent given the growing labour disputes in Hong Kong by the day. All parties can get back to their original positions and engagements rather than indulging in time-consuming disputes. Incidentally, the same can be said about consumer disputes: in the hope that providers of goods and services will be minded to proffer an apology to appease annoyed customers without fear of liability, saving both Court time and the opportunity costs of lost economic benefits on both sides.

Personal Data Privacy Issues

A statement was issued by the Privacy Commissioner for Personal Data whereby it is surmised that the enactment will be more conductive for the parties complained against in personal data privacy matters to issue an apology to the data subjects, easing the tension and mitigating the damage to the data subject. The parties complained against may also be more willing to accept the Privacy Commissioner for Personal Data’s recommendation to take appropriate measures to resolve the matter.

It is also envisaged that this culture of making apologies will permeate to the other government departments, in mitigating damages and protecting personal data proactively.

A Step Ahead

Should one ever apologise in a dispute? This is particularly pertinent in the latitude of discretion given to the decision maker as to whether to admit an apology as evidence in any Applicable Proceedings.

It is pivotal that one is fully cognizant of his rights and protection under the Ordinance. An apology, especially one made before or in contemplation of any Applicable Proceedings or mediation, should be meticulously prepared, under due legal advice if necessary. Albeit the admissibility of an apology in such proceedings can be challenged or appealed from, it is perhaps best to adhere to the original spirit of the Ordinance, i.e. to prevent acceleration of animosity between parties and to resolve differences promptly, efficiently and amicably.