Hong Kong – The New Apology Ordinance.

On 13 July 2017, the Apology Ordinance (Cap 631) (“AO”) was passed at the Legislative Council (“LegCo”). The AO will come into operation on 1 December 2017.

The AO reforms the legal consequences of making an apology (where such expression may be oral, written, or by conduct). Under the AO, “apology” has a broad meaning and refers to an expression of the person’s regret, sympathy or benevolence in connection with the matter and includes an expression that the person is sorry about the matter.

The AO provides that even if an apology includes an admission of fault, it will not constitute an admission of fault or liability. Making an apology in connection with a matter does not void or otherwise affect any insurance cover, compensation or other form of benefit for any person in relation to the matter under a contract of insurance or indemnity.

In relation to admissibility, unless the person making the apology wishes it to be admitted, such apology is not admissible in evidence to the detriment of the person. However, the AO contains an exception that where there is an exceptional case in the applicable proceedings (e.g. where there is no other evidence available for determining the issue), the decision maker may exercise his/her discretion to admit a statement of fact in an apology as evidence in the proceedings, but only if the decision maker is satisfied that it is just an equitable to do so.

Given the broad exception and the unclear scope as to how decision makers will exercise their discretion, this has created some uncertainty in the degree of protection extended to the person making the apology.

While the AO aspires to facilitate and encourage the early resolution of civil disputes in Hong Kong, as it has not yet come into force, it is currently unknown whether it will achieve its objectives. In principle, as the AO will be applicable to Labour Tribunal proceedings, this could be helpful in certain employment disputes where employees feel aggrieved by the employer’s actions and demand for an apology.

Under the new regime, employers may be more open to make an apology without the fear of making a concession that could be used against them in subsequent legal proceedings at the Labour Tribunal or the civil courts.