1. On 13 July 2017, the Legislative Council passed the much-anticipated Apology Bill, first introduced by the Working Group on Mediation of the Department of Justice in 2010. This is a landmark for Hong Kong as the first Asian jurisdiction to enact a law of this kind.
2. The spirit of the apology legislation is to allow an apology to be made without fear that it will be used as evidence of admission of fault or liability in civil proceedings. Since the Civil Justice Reform in 2009, the increasing use of mediation has rendered apology legislation all the more necessary. Particularly in medical negligence cases, an apology (or lack thereof) can 'make or break' successful resolution.
3. The Apology Bill is a relatively short document, containing 13 Clauses and one Schedule. It is similar to apology legislation in other common law jurisdictions.
4. By virtue of Clause 6, the Bill applies to civil judicial, arbitral, administrative, disciplinary and regulatory proceedings. It does not apply to criminal proceedings and proceedings conducted under the Commissions of Inquiry Ordinance (Cap. 86), Control of Obscene and Indecent Articles Ordinance (Cap. 390) and Coroners Ordinance (Cap. 504).
5. The Bill applies to apologies made after the commencement date of the Ordinance.
6. The Bill does not apply to apologies made by a person in a document filed or submitted; testimony, submission or similar oral statement; or adduced as evidence with the consent of the apology-maker in the applicable proceedings.
7. Clause 4 defines "apology" as "an expression of the person's regret, sympathy or benevolence in connection with 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. The definition encompasses an expression that amounts to express or implied admission of fault or liability and also statements of fact.
8. By virtue of Clause 7, an apology is generally not admissible for determining fault, liability or any other issue to the prejudice of the apology-maker in certain proceedings.
9. By Clause 8, the arbiter of any proceedings has the discretion in exceptional circumstances to admit statements of facts contained in an apology as evidence if it is just and equitable to do so. An example is where there is no other evidence available for determining an issue.
10. An apology does not amount to an "acknowledgment" for the purpose of section 23 of the Limitation Ordinance (Cap. 347) (Clause 9).
11. Under Clause 10, an apology does not void or affect any insurance cover, compensation or other form of benefit for any person under a contract of insurance or indemnity.
12. Clause 11 provides that the Bill does not affect discovery or a similar procedure in applicable proceedings; certain provisions in the Defamation Ordinance (Cap. 21) in which an apology is relevant as defence or for mitigating damages; or the operation of the Mediation Ordinance (Cap. 620).
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