Statutory Declarations and Affidavits Before a Hong Kong Notary: A Practical Guide

Introduction

Statutory declarations and affidavits are formal sworn or affirmed statements made before an authorised officer — such as a notary public, a commissioner for oaths, or a magistrate — in which the maker solemnly declares or swears to the truth of the matters stated. Both types of document are used in a wide range of legal, administrative, and commercial contexts, and their proper preparation and execution is essential to their legal validity and effectiveness.

This article explains the difference between statutory declarations and affidavits, the circumstances in which each is appropriate, and the procedure for making such documents before a Hong Kong notary public for use in both domestic and international proceedings.

Statutory Declarations

A statutory declaration is a formal statement in which the maker declares (rather than swears or affirms) that the contents of the declaration are true. Statutory declarations are made in the presence of an authorised officer, such as a notary public or a justice of the peace, who witnesses the declaration but does not administer an oath.

When Statutory Declarations Are Used

Statutory declarations are used in a wide variety of contexts, including:

Identity and Status: Statutory declarations are commonly used to establish a person's identity, marital status, or relationship to another person, particularly when documentary evidence is unavailable or insufficient. For example, a statutory declaration may be used to establish that a person is the sole surviving relative of a deceased person for the purposes of an administrative claim.

Commercial and Banking: Banks and financial institutions often require statutory declarations in connection with the operation of accounts, the settlement of deceased clients' accounts, or the resolution of disputed transactions. Statutory declarations may also be required to satisfy KYC or AML requirements in complex or unusual circumstances.

Property Transactions: Statutory declarations are used in property transactions to declare that no undisclosed interests exist, that a property has been in continuous possession for a specified period, or that no disputes affect the title to the property.

Immigration and Visa Applications: Many foreign immigration authorities require statutory declarations as supporting evidence for visa applications, particularly where documentary evidence of family relationships or personal circumstances is unavailable.

Estate Administration: Statutory declarations are frequently required in connection with the administration of deceased estates, for example to establish the identity of beneficiaries, to confirm that no other wills exist, or to support applications for small estate certificates.

Making a Statutory Declaration Before a Hong Kong Notary

To make a statutory declaration before a Hong Kong notary public, the declarant must attend the notary's office in person (or in certain circumstances, appear before the notary via approved remote means). The notary will verify the identity of the declarant and will ensure that the declarant understands the content and effect of the declaration before administering the declaration.

The form of a statutory declaration in Hong Kong typically begins with the declarant's personal particulars, followed by the substantive content of the declaration, and concludes with a declaration in the prescribed form: "I, [name], do solemnly and sincerely declare that the above information is true and correct, and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths and Declarations Ordinance."

Making a false statutory declaration is a criminal offence under the Oaths and Declarations Ordinance (Cap. 11), which should be clearly understood by all declarants.

Affidavits

An affidavit is a written sworn statement in which the maker (the deponent) swears or affirms that the contents of the statement are true. Unlike a statutory declaration, which involves a formal declaration, an affidavit is made on oath or affirmation and is therefore subject to a higher legal sanction for falsehood.

When Affidavits Are Used

Affidavits are principally used in legal proceedings, both in Hong Kong courts and in foreign courts and arbitration proceedings. Common applications include:

Court Proceedings: Affidavit evidence is used extensively in Hong Kong court proceedings, including in applications for injunctions, summary judgment, and leave to appeal. The Rules of the High Court specify the form and content of affidavits for use in High Court proceedings.

Arbitration: Witness statements in arbitration are often presented in affidavit form, particularly where the arbitral rules or the parties' agreement requires sworn evidence. In HKIAC and ICC arbitrations seated in Hong Kong, witness statements may be sworn as affidavits before a notary public.

Foreign Court Proceedings: Hong Kong residents who are witnesses or parties in foreign court proceedings may be required to provide affidavit evidence sworn before a Hong Kong notary public for use in those proceedings. The form and requirements of the affidavit may be prescribed by the foreign court's procedural rules, and the notary must certify the execution in a form acceptable to the foreign court.

Applications Before Regulatory Authorities: Some regulatory applications — including licensing applications and professional registration applications — require supporting affidavits.

Swearing vs. Affirming

An affidavit may be sworn on the Bible, the Koran, or another holy text relevant to the deponent's religion, or may be affirmed if the deponent has no religious belief or objects to swearing an oath on grounds of conscience. For most practical purposes, a sworn affidavit and an affirmed affidavit have identical legal effect.

The notary public will administer the oath or affirmation in the form appropriate to the deponent's religion or preference. The deponent must declare that they understand the content of the affidavit and that the contents are true.

Jurat

The jurat is the clause at the end of an affidavit that records the circumstances in which the affidavit was sworn or affirmed, including the date, place, and the identity of the officer before whom the oath or affirmation was taken. The jurat is signed by both the deponent and the notary and is an essential element of a valid affidavit.

Affidavits for Use in Foreign Proceedings

When an affidavit is to be used in foreign court proceedings, particular attention must be paid to the procedural requirements of the foreign court. Many foreign courts have specific requirements as to the form of the jurat, the form of the oath or affirmation, whether the affidavit must be witnessed by a notary specifically (rather than any commissioner for oaths), and whether the affidavit must be authenticated by apostille or consular legalisation.

A Hong Kong notary public can prepare and administer an affidavit in a form appropriate for use in most foreign jurisdictions, taking into account any specific requirements communicated by the foreign court or the instructing solicitors. The notary can also arrange for the affidavit to be authenticated by apostille if required.

Common Requirements and Pitfalls

Personal Attendance

In virtually all cases, the declarant or deponent must attend before the notary in person to make the declaration or swear the affidavit. The notary cannot administer an oath or witness a declaration remotely (except in the limited circumstances where approved remote notarisation procedures are available) and cannot accept a pre-signed document.

Identification

The notary will require the declarant or deponent to produce valid photo identification, such as a Hong Kong Identity Card or a valid passport, before administering the oath or witnessing the declaration. The identity of the maker is a fundamental element of the notarial certificate.

Exhibit Marking

Affidavits frequently refer to and exhibit documents that are produced to the notary at the time the affidavit is sworn. The exhibits must be marked and identified by the notary with the deponent's signature and the notary's mark, to create a formal exhibit certificate that links the exhibit to the affidavit.

Conclusion

Statutory declarations and affidavits are fundamental legal documents that must be prepared and executed with precision and in full compliance with applicable legal requirements. A Hong Kong notary public has the authority and expertise to administer oaths and witness declarations for use both in Hong Kong and internationally, and can advise on the specific requirements applicable to any particular foreign jurisdiction.

Alan Wong LLP's notarial services team regularly prepares and administers statutory declarations and affidavits for use in court and arbitration proceedings, regulatory applications, immigration matters, and commercial transactions. Contact our team to discuss your requirements.