It is likely that you have had a document notarised before, at least it is likely that you will have one done in the future for one reason or another. Being aware of who can notarise, what notarisation is, why it is necessary and the risks of not carrying it out properly is worth understanding.
Who can notarise in Hong Kong?
Generally, a Notary Public may be described as an officer of the law whose public office duty it is to draw up, attest or certify certain documents under their signature and official seal. Notaries Public are usually experienced solicitors who have been practicing for at least 7 years. A qualified Notary Public will have had to pass the Notary Public Examination organised by the Hong Kong Society of Notaries in addition to the appointment of the High Court.
It is a common misconception that all solicitors act as Notaries Public. This is not the case. While solicitors can certify true copies of documents and are recognised as “commissioners for oaths”, they cannot notarise documents. Getting a true copy certified in Hong Kong by a commissioner for oaths may not be sufficient if the document is required overseas or is a specific document which requires notarisation by a Notary Public. For example, banks or authorities might require documents such as Certificates of Incorporations and Business Registration Certificates to be notarised by a Notary Public, in which case certification by a commissioner for oaths may not be sufficient.
What is notarisation?
So, we understand who can notarise a document, but what is it that these professionals do?
A Notary Public will verify that signatures on a document were signed by the person referred to, with their own free will. Valid notarisations of documents ensure nobody can pretend to be somebody else or force a mentally incapacitated person to execute a document.
They are accepted internationally, so long as the document has been correctly notarised by an official Notary Public, who is regarded as such in the jurisdiction where the document was notarised.
In Hong Kong, the Notary Public will verify the identities of everybody signing the document, witness the signatures, and mark the document with a stamp (or “seal”). The Notary Public’s seal is registered with the High Court of Hong Kong and many foreign consulates in Hong Kong.
Depending on the situation, Notaries Public may need to do further research into a situation to satisfy him/herself that everything is legitimate with the notarisation.
The Notary Public might need to certify that a document is a true copy and/or carry out company searches at the Companies Registry against a company to confirm the directors/shareholders. For example, if a director wishes to sign a document on behalf of a company the Notary Public will have to be satisfied that the director has the authority and is abiding by the company’s formalities laid out in their articles of association. If the director is representing a foreign company, the Notary Public may have to seek a legal opinion from the jurisdiction in which that company operates, confirming that the director in question has the authority to act on behalf of the company.
If a document is required for use in one of the Hague Apostille Convention States or Territories, then it will need further authentication by an apostille issued by the High Court of Hong Kong.
An apostille is a certification under the terms of the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents. It is an international certification and will normally supplement a locally notarised document abolishing the need for further legalisation/authentication. If the convention applies between two countries, an apostille is sufficient to certify a notarised document’s validity, and removes the need for legalisation/authentication, by the government authorities in the originating country and then by embassy or consulate authorities of the receiving country (in the originating country).
If the document needing authorisation is destined for a location that is not a Hague Apostille Convention state or territory, then legalisation/authentication of the identity, signature and seal of the Notary Public by a relevant diplomatic representative of the state or territory, in Hong Kong, will be required.
People’s Republic of China (“PRC”) documents requiring notarisation need to be recognised by the PRC. Documents originating in Hong Kong that need to be legally recognised and protected by the laws of the PRC, will need to be attested by a China Appointed Attesting Officer then sent to “China Legal Services (H.K.)” for “Sealing and Transfer Delivery”. China Appointed Attesting Officers are qualified Hong Kong lawyers who have been appointed by the Ministry of Justice of the PRC after passing the prescribed examinations.
Documentation that may need authorised for overseas include Powers of Attorney (POA), for example a private wealth manager may require a POA to manage somebody’s money. A notarisation will provide financial institutions with proof that the client signed the document with their own free will and will safeguard against fraud. The customer will also be protected as it means that somebody cannot fraudulently grant a POA on their behalf.
Other examples include witnessing affidavits and other documents for filing with foreign courts or administrative offices. The authentication from a Notary Public, or equivalent depending on the jurisdiction, will validate the documents.
How are foreign language documents notarised?
If a document is in a different language to one recognised in that particular jurisdiction (in Hong Kong, English or Chinese) then the document can be officially translated into a recognised language in that jurisdiction. The Notary Public can then understand the document and notarise it in the normal way.
However, it is not compulsory to have the document officially translated. If it is a document that is in a different language, then the Notary Public needs to be satisfied that the person in front of them understands the document they have signed and its contents.
The purpose of notarisation is to deter fraud and ensure trust in the document itself. Many documents require legitimate notarisation for them to be accepted. Overall, failing to notarise a document may mean the document is deemed invalid and therefore unable to be used. If a document has failed to be notarised properly, it can prove costly.
For example, if a cross-border large share transaction is due to take place it is essential that all the valid documentation is in place at the right time. Delays could prove damaging and expensive if he documents have not been properly notarised. Other examples include property transfers, often there is a time period in which buyers/sellers are obligated to complete the transfer of a property. If there is improper notarisation or no notarisation, then this could lead to delays and breach of contract. Breaches in conveyancing contracts can have several consequences, including financial penalties such as forfeiture of deposit.
What you will need to complete a notarisation
Once you have contacted the Notary Public’s office, they will ask you to come into their office with your valid identification (HKID or Passport), the document needing authorised and any other relevant documents (e.g. proof of address).
The traditional procedure will involve the Notary Public witnessing your signature and checking your valid identification. If they are satisfied that you understand what you are signing, they will affix their stamp (or “seal“) to the document.
At Hugill & Ip we frequently notarise documents. If you need a further understanding of the subject, or want to enquire about getting a document notarised, please get in contact. Please click the link for a full list of our notarial services.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.