After the 2012 Lamma ferry disaster, the idea for "apology legislation" arose when the Director of the Marine Department apologised eight months after the incident. The Director explained that he had to seek legal advice beforehand to avoid potential problems arising from a public apology. Subsequently, a Steering Committee was set up to consider the possibility of introducing apology legislation in Hong Kong.
On 13 July 2017, the Hong Kong Legislative Council ("LegCo") passed the Apology Bill (the "Bill") by 46-2 votes. Hong Kong has become the first jurisdiction in Asia to enact apology legislation. It is expected that the Bill will be gazetted 21 days after the passing of the Bill, and it will be effective once it is gazetted.
The Ombudsman, Connie Lau Yin-hing, welcomed the passing of the Bill: "We believe that the enactment of the Apology Ordinance, which the Office of The Ombudsman has strongly advocated, will encourage government departments and public organisations to be more forthcoming in extending apologies where due. This will certainly help soothe the sentiments of aggrieved citizens and even facilitate speedy settlement of disputes. I think apologies can lead to effective resolution of disputes, thereby restoring social cohesion and mutual trust."
Effect of the Bill
The objective of the Bill is to "promote and encourage the making of apologies with a view to preventing the escalation of disputes and facilitating their amicable resolution". 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.
It should be noted that the Bill also applies to the Government of Hong Kong. Therefore, the Government should be able to apologise, if appropriate, without having to seek legal advice for a long period of time.
Meaning of an apology
An apology is an expression (whether oral, written or by conduct) of the person's regret, sympathy or benevolence in connection with the matter. The following are some examples:
- In a personal injury context, where a driver drove negligently and injured a pedestrian, a prompt apology is a powerful tool to support the injured and his/her family both emotionally and psychologically. A simple apology can facilitate the parties to move on and discuss the future and next steps. It can also reduce negative feelings, prevent escalation of disputes to civil proceedings and promote settlement.
- 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. This facilitates affected investors settling with the company.
- An airline can now apologise and offer settlement as soon as it discovers that it was wrong in forcing passengers, who has bought a ticket and reserved a seat, off the plane.
- If a lawyer negligently provides a wrong legal advice, the lawyer can apologise almost immediately to the client and suggest remedies to the problem.This alleviates the anger and anxiety of the client.
The Bill applies to an apology made by a person on or after the commencement date of the Bill 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 Bill does not have retrospective effect in relation to apologies made before its commencement date.
Applicable proceedings include judicial, arbitral, administrative, disciplinary and regulatory proceedings, but do not include:
- Criminal proceedings;
- Proceedings conducted under the Commissions of Inquiry Ordinance (Cap. 86), the Control of Obscene and Indecent Articles Ordinance (Cap. 390) and the Coroners Ordinance (Cap. 504); and
- LegCo proceedings, including proceedings of a committee, panel or subcommittee established or mandated by the LegCo.
The rationale that the Bill does not apply to the above proceedings is 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 Bill aims at encouraging parties to apologise and facilitate settlement of disputes, which is different from criminal proceedings (i.e. aiming at punishing criminals and deter criminal offences).
In addition, the Bill 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."
The reason for such exclusions is that a party may choose to make an apology in court documents intending the apology to be considered in the proceedings, thus the exceptions (1) and (2) above allow such an apology to be taken into account in the proceedings. Exception (3) deals with apology made outside of the proceedings where the apology maker agrees its admission as evidence. Hence, with such exceptions, an apology can be considered as evidence in applicable 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". Some LegCo members expressed concern that this exception is too vague, but the Secretary for Justice has said "the expression 'just and equitable' is well known under common law ... the same is true for the concept of 'public interest'. I have no doubt that the courts can, and will, decide what is and what is not 'just and equitable' in a professional and judicious manner."
Apology will not affect insurance cover
Defendants seldom apologise because they fear that an apology may also render insurance coverage void or have a detrimental effect. The Bill 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. Insurance policy terms also cannot opt out of this Bill by contractual wordings.
Therefore, the Bill protects the insured when claiming compensation under an insurance policy if he/she apologised. This removes any related barrier to the making of apologies.
Conclusion
The Bill 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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
