With the introduction of Covid-19 vaccine programmes and certificates, the World is on the course of gradual recovery. Yet, with travel restrictions and quarantine regimes still in place in many parts of the World, corporate management personnel may not be keen to travel, and are thus unable to execute corporate documents physically in the desired countries/regions.
A Notary Public may be able to assist in such circumstances.
For example, a Hong Kong incorporated limited company is looking to establish a subsidiary in Cambodia, but its directors are unable to travel to Cambodia to sign the relevant papers. How can it proceed?
The Company may first appoint a director to execute a Power of Attorney in favour of a local attorney in Cambodia to handle the relevant procedures on its behalf.
Such a Power of Attorney may be executed by the director in the physical presence of a Hong Kong Notary Public, who attests its execution, and arranges for the affixing of an Apostille by the High Court and legalization by the Consulate General of Cambodia in Hong Kong.
What if the director is not physically present in Hong Kong? Can a Hong Kong Notary Public attest the execution of documents for use in Hong Kong via video-conferencing?
Under the Legal Practitioners Ordinance (Cap.159), a Hong Kong Notary Public may not attest, authenticate or certify the due execution of documents and/or administer oaths, affirmations or declarations under the Oaths and Declarations Ordinance (Cap.11), or otherwise exercise his office as notary outside Hong Kong. Therefore, he can only do so in Hong Kong and when the client is in his physical presence.
However, in view of the ongoing pandemic, the Hong Kong Society of Notaries issued a Practice Direction in late April 2021 directing that, as an interim measure, upon compliance with certain conditions, a Notary Public may certify as to his clear viewing of the execution of documents via video conferencing. Such conditions include (but are not limited to):-
- The client must be physically in Hong Kong but unable to personally appear before the Notary Public to execute the relevant document(s) as he is undergoing mandatory quarantine imposed by the Hong Kong Government;
- The Notary Public should conduct a preliminary enquiry by seeking written confirmation from the Client or relevant authority in the receiving overseas jurisdiction that the intended notarial act will be accepted;
- The Notary Public should ask the Client to provide his address in Hong Kong, and the Client should provide sufficient evidence that he is physically in Hong Kong simultaneously with the Notary Public at the time of the notarial act;
- The Client should provide copies of the documents to be executed and his identification documents to the Notary Public in advance; and
- The Notary Public may only narrate the circumstances of the video conference and certify the genuineness of the signature of the Client, but cannot certify that he ‘attested’ the execution.
In the event that the Client is not physically in Hong Kong, alternative arrangements may have to be made depending on the circumstances.
Please feel free to contact us at enquiry@hksunlawyers.com for further enquiries.
