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Saying "Sorry" now comes without risk - in Hong Kong

Editorial Staff

Many people, especially those making statements on behalf of companies, are afraid to say "sorry" in case it becomes an admission of liability that brings with it adverse consequences. It's time for change.

For several years, researchers have been demonstrating that many people who suffer a wide range of wrongs feel that the original harm is compounded because, as they see it, a callous refusal to express regret and, in consequence, statements of sympathy seem to be less than heartfelt. What, then, if someone could say "sorry" and express sympathy and not find that apology and statement used against them in court?

Hong Kong decided that the probable reduction in litigation that arises because no one says "sorry" was worth correcting. The situation was brought to a head after a ferry disaster in 2012: the then Director of the Marine Department refused to issue an apology to the victims and families, making it very clear that no matter how much he might want to, he could not because of the potential liabilities that would attach to his employer.

The Hong Kong Apology Ordinance (cap 631) was passed on 20th July and signed into law by the new Chief Executive Carrie Lam. She inherited the Ordinance at the last gasp after a consultation period lasting some years.
The Ordinance is at http://www.gld.gov.hk/egazette... but no commencement date has yet been set. Having said that word is that it will be in force "soon."

It is not a long piece of legislation and it is simple and clearly written:

In this Ordinance, an apology made by a person in connection with a matter means 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.
(2)The expression may be oral, written or by conduct.
(3)The apology also includes any part of the expression that
(a) an express or implied admission of the person’s fault
or liability in connection with the matter; or
(b) a statement of fact in connection with the matter.
(4) In this Ordinance, a reference to an apology made by a person includes an apology made on behalf of the person.
(5 Section 5 specifies the apologies to which this Ordinance applies.

Section 5 says that the Ordinance applies to an apology in respect of an incident whether it occurred before or after the commencement date (this, readers will work out, does not make it retrospective in effect) or if applicable proceedings had or were commenced before or after the commencement date (again, this does not provide retrospective effect: a person might issue an apology even though proceedings are already on foot and if he does so, his statement is not to be regarded as an admission).

However, and here people must be careful: the Ordinance "does not apply to an apology made by a person in a document or testimony during applicable proceedings.

So, a statement from the Court steps is covered but a statement from the witness box is not.

The extent of what we might call "apology privilege" is clear from section 8(1) - it says "evidence of an apology made by a person in connection with a matter is not admissible in applicable proceedings as evidence for determining fault, liability or any other issue [editor's note: this includes quantum of damages] in connection with the matter to the prejudice of the person. Moreover, at section 10, the Ordinance makes it clear that "an apology... does not void or otherwise affect any insurance cover, compensation or any other form of benefit for any person ...under a contract of insurance or indemnity."

This is perhaps the part of the Ordinance that will most resonate with ordinary people: all over the world, insurers tell drivers that they must not apologise at the scene of an accident, nor say any words that might be construed as an apology, because, to do so, would create liability for the insurer. In Hong Kong, that bar, which causes so much distress for all those concerned, will no longer apply. In short, what the Ordinance has done is to permit the return of humanity and kindness to unfortunate situations, reminding those involved that in many cases, they are all in the same boat and removing the inevitable hostility that arises when people cannot say what they know they should say.

But there are exceptions and they are important. There are four, of which two require special mention: the first is in relation to investigations under the Control of Obscene and Indecent Articles Ordinance (CAP 390) and proceedings under the Coroners Ordinance (CAP 504). It follows that an an apology in relation to a fatality can be admitted. Otherwise, an apology renders the person issuing it safe from criminal and civil proceedings, including arbitration.

This would be a good thing to see catch on worldwide.

Applicable proceedings are