Submission on the 2nd Round Consultation on Enactment of Apology Legislation in Hong Kong

1. Consumer Council is pleased to have the opportunity to submit its views on the 2^nd round consultation on enactment of Apology Legislation in Hong Kong.
2. This Council notes that its views on the 1^st round consultation submitted in August last year concerning the 7 recommendations are basically in agreement with what are now the Final Recommendations 1 to 7 made by the Steering Committee set out in the Report for the 2^nd Round Consultation (“the Report”). In this submission, this Council will focus on the Final Recommendation 8 proposed by the Steering Committee, which invites further views on whether the apology legislation shall cover statements of fact in connection with the matter in respect of which an apology has been made.
3. As regards this issue, this Council has carefully considered and assessed the 3 alternative approaches proposed by the Steering Committee. With the objective of the proposed Apology Bill to promote and encourage the making of apology in mind, we have sought to strike a proper balance between on the one hand the benefits of apology and legal clarity and certainty, and on the other, the potential injustice arising from the inability to use evidence connected to matter regarding which the apology has been made, and is material or even indispensable to the claim of the plaintiff.  Our conclusion is that the third approach as recited below is preferable:

“Statements of fact in connection with the matter in respect of which an apology has been made should be treated as part of the apology and be protected. However, the court retains the discretion to admit such statement of fact as evidence against the maker of the apology in appropriate circumstances.”

4. We agree that the first approach under which the court does not have the discretion to admit an apology containing statements of fact as evidence against the maker of the apology, would be most effective when compared with the other two approaches in achieving the objective of encouraging and promoting the making of apology,  A speedy and amicable settlement of dispute is more likely to be facilitated. However, the argument mentioned in para. 10.15 of the Report supporting the proposition that under the first approach a proper balance has been struck does not address the possibility that justice may be compromised where the statements of fact is the material or even indispensable evidence on which the claimant will rely. We are of the view that such a possibility cannot be ruled out. Even though such a situation may transpire rarely, we share the view mentioned in para. 10.10 of the Report that the claimants’ rights to draw upon an apology in their evidence base should not be ignored simply because such cases are likely to be few in number. We do agree that “protecting the right of minorities is at the heart of good law making”.
5. As for the second approach, we note that the Apologies (Scotland) Bill which has been recently passed contains no reference to statements of fact. We share the view that it is difficult, if not impossible to draw the distinction between “fact” and “apology” in a piece of legislation. Nevertheless, we have reservation on the approach of leaving the issue of whether statements of fact should form part of an apology to the discretion of the court on a case by case basis. It is our concern that in certain cases it would be extremely difficult to segregate statements of fact from an apology which have been mingled with each other in the representations of the apology makers.
6. Furthermore, to determine the issue on a case by case basis will create enormous uncertainty and therefore discourage people from making apologies, contrary to the legislative intent of promoting a culture of making apologies for reaching settlement. Worse of all, this approach may create a situation where important evidence is excluded.
7. On the other hand, we find the third approach preferable to the other two. Like the first approach, it attains legal certainty and clarity by making it a default position that statements of fact in connection with the matter in respect of which an apology has been made be treated as part of the apology and be protected. Nevertheless, flexibility is retained to secure justice in that the court has the discretion to admit such statements of fact as evidence against the maker of the apology in appropriate circumstances, it would help avoid any inadvertence injustice being done to a claimant, such as where those statements of fact is the only evidence available to the claimant. Although this would leave the parties with some uncertainty, such uncertainty could be minimized by legislative provisions setting out the matters to be considered by the court when exercising its discretion to admit the statements of fact [akin to s.6 of the Unconscionable Contracts Ordinance (Cap.458)] and binding precedents. In this premise, the parties would have a clearer view of their positions; and a lawyer would advise his client alleged to have wronged according to the legislative provisions and precedents, instead of merely advising him not to apologize.
8. In addition, the third approach may ensure observance of a fundamental principle of justice that court should always consider and value all the relevant evidence in maintaining a fair hearing to the parties, as guaranteed by Article 10 of the Hong Kong Bill of Rights.
9. Last but not least, this approach is also consistent with the Final Recommendation 3 that the apology legislation shall cover full apologies, of which we are supportive.