Attestation of documents executed overseas for use in Hong Kong

The Office of the Commissioner of the Ministry of Foreign Affairs of the People's Republic of China in the HKSAR ("OCMFA") recently relaxed its policy on the attestation of documents executed overseas for use in Hong Kong. Whilst the new policy is already in force at the OCMFA, the Probate Registry is still considering the changes.

The new OCMFA policy, which is outlined in Law Society Circular 13-832 issued on 4 November 2013, provides the following:

• Documents issued which are required for use in Hong Kong from countries within the Commonwealth, whether or not they are parties to the Hague Convention Abolishing the Requirement of Legalisation of Foreign Public Documents (the "Hague Convention"), no longer require legalization by the Embassy or Consulate General of the PRC.   Such documents still, however, need to be authenticated by the Ministry of Foreign Affairs or the appropriate authentication office of such countries.
• For other countries, documents issued will not require legalisation by the Embassy or Consulate General of the PRC if they are a party to the Hague Convention. Such documents will still, however, need to be affixed with an apostille issued by the appropriate authority in those countries.
• Documents issued by countries which are neither part of the Commonwealth nor which are parties to the Hague Convention must be both (i) authenticated by the Ministry of Foreign Affairs or the appropriate authentication office of such countries; and (ii) legalized by the Embassy or Consulate General of the PRC.

The Law Society, on 4 February 2014, informed practitioners that, whilst the new policy is already in force at the OCMFA, the Probate Registry in Hong Kong is still considering the changes and, in the meantime, will maintain their existing practice.  As a result, parties may now find themselves between a rock and a hard place in circumstances where the OCMFA refuses to legalise a document (based on their new policy) and the Probate Registry refuses to accept the document because it does not comply with their existing policy on the proper process of attestation.

In such circumstances, the Law Society advises that parties should explain their case to the Probate Registry setting out in writing the (i) situation they face; and (ii) reasons the Chinese Embassy/Consulate provides for refusing to attest the document.  In addition, the Law Society recommends that parties inform the Law Society so that they can raise the matter up for discussion with the Probate Registry at the next meeting of the Joint Standing Committee on Probate Practice.

If you wish to discuss, please contact Gareth Thomas or Richard Norridge of our Private Wealth and Trusts team.