The Struggle Between Personal Will and Court Powers: Apology Order as the Further Step in Civil Remedies?


Court-ordered apology is an unconventional remedy in Hong Kong, as its retributive nature is arguably a step beyond the mantra of restorative justice in tortious compensation.  In particular, its applicability against unwilling defendants in defamation actions was yet to be considered by Hong Kong authorities.  

This novel point of law was addressed in the recent libel case of Wave Chow v Liang Jing [2021] HKDC 609.  Although no order of apology was eventually awarded, it still provides helpful guidance on the Court’s powers and considerations to make such orders.


Jurisdiction is the most immediate issue.  Interestingly, discussion of apology orders in most local precedents is usually limited to discrimination and harassment contexts, such as sexual harassment (see Yuen Sha Sha v Tse Chi Pan [1999] HKDC 2) and disability discrimination (see Ma Bik Yung v Ko Chuen (2006) 9 HKCFAR 888, considered in Wave Chow). 

Wave Chow is the first occasion in which a Hong Kong Court recognizes that making apology orders is within its general jurisdiction.  The gist is that such orders, like any other type of mandatory injunction, could be granted when the Court considers it “just or convenient”, applying s.52B of the District Court Ordinance (Wave Chow at §§142-146, Credit Guarantee Corp Malaysia Bhd v SSN Medical Products Sdn Bhd [2017] 2 MLJ 629 considered).  The significance of this decision is two-fold: First, it is now clear that the scope of potential relief for defamation is expanded in Hong Kong.  More importantly, the Wave Chow judgment can extend beyond defamation context.  This is because Courts at other levels also enjoy similar jurisdiction to make “just and convenient” apology orders even in non-defamation cases.  An example is to invoke s.21L(1) of the High Court Ordinance. 


Before further discussion, the distinction between the Court’s jurisdiction and discretion should be noted: The mere fact that the Court has seldom invoked such power does not equate to lacking jurisdiction.  While the Court’s powers are subject to statutory ambits, equitable remedies are in principle not mechanistically restricted to particular categories: TV3 Network Ltd v Eveready New Zealand Ltd [1993] 3 NZLR 435, considered in Wave Chow.  

Passing the jurisdictional question, the Courts are nevertheless inclined to exercise discretion cautiously.  The Hong Kong position in Wave Chow (§§149,154-155) resonates with that of Malaysia, Singapore, and New Zealand, perceiving apology orders against unwilling defendants as only justifiable in “exceptional circumstances”.  While a court-ordered apology does not necessarily infringe freedom of expression or conscience, the primary consideration of the Court is that this is different from compelling defendants to pay damages and insincere apologies are rarely reasonable: see Credit Guarantee Corp Malaysia Bhd at §70; see also Ma Bik Yung at §§135-137.

The range of “exceptional circumstances” was not precisely set out in Wave Chow and most Hong Kong defamation cases.  However, Ma Bik Yung (§135) could suggest that the Court adopts a global mindset and examines multiple factors, such as the range of available reliefs, submissions on guaranteed rights and freedoms, the defendant’s circumstances for unwillingness to apologize, interests of the community, and the loss suffered by the plaintiff.  Non-local authorities considered in Wave Chow also indicate relevance of the defendant’s conduct, such as whether the defamatory statements were published to a majority of the public (Credit Guarantee Corp Malaysia Bhd at §68), as well as intentional or reckless conduct of the defendant (TV3 Network Ltd at p.441 line 39-50). 


Other than apology orders, defamation victims may consider seeking for an order directing the defendant to publish a summary of the judgment.  The advantage is that this is justifiable even without exceptional circumstances, since requiring defendants to publish facts is different from compelling them to apologize (Ma Bik Yung at §53).  By the logic of the Wave Chow judgment, Courts also likely have jurisdiction to make such order whenever “just and convenient”. 


While the Wave Chow judgment has certainly clarified the position of apology orders in the realms of defamation law and civil procedure, such orders remain uncommon in Hong Kong.  Further judicial development and discussion on exceptional cases would be most beneficial to the legal community and clients in distress. 


Undergraduate Fellow of the Asian Institute of International Financial Law, Faculty of Law, University of Hong Kong