Introduction
Notarization refers to the process where a notary public certifies the authenticity of, or witnesses a person’s signature on, a document, and then signs and affixes his/her seal. Notarization is typically required for legal documents to be used overseas (except for Mainland China, where a foreign document has to be attested by a China Appointed Attesting Officer and authenticated by China Legal Services (Hong Kong) Limited).[1] By virtue of Hong Kong’s role as a signatory of the Hague Apostille Convention of 5 October 1961, documents authenticated and certified by a notary public will be accepted by most countries in the world, specifically the 127 signatories of the Convention.
In Hong Kong, the appointment of notaries public is regulated by Part IV of the Legal Practitioners Ordinance (Cap. 159) and is vested to the Chief Judge of the High Court of Hong Kong.
Significance of notarization
By certifying the authenticity of a document with the notary public’s signature and seal, the receiving party, most often an entity in a foreign jurisdiction, will be certain about the legitimacy and enforceability of the document. Given the international recognition of notarized documents, notaries public serve as essential documentary and testamentary links which assist individuals and companies in managing assets worldwide, in conducting foreign transactions, and in maximizing mobility between Hong Kong and other parts of the world.
Being a notary public in Hong Kong
The profession is highly regulated by reason of its responsibilities that extend beyond borders. In Hong Kong, a notary public must have been a practicing solicitor in Hong Kong for at least 7 years and must have passed the notarial exam conducted by the Hong Kong Society of Notaries before his/her appointment by the High Court of Hong Kong. Further, a notary public is required to renew his/her practicing status annually.
Under Section 10 of the Notaries Public (Practice) Rules (Cap. 159AI), a notary public must establish and maintain a register of all the notarial works carried out by him/her. Particulars entered in the register must be retained for not less than 6 years.
Notarial acts for individuals and companies
Notaries public are typically requested to notarize documents such as Powers of Attorney (POA), constitutional documents of companies, affidavits or affirmations, personal identification documents, property transactions and wills or other testamentary documents. Depending on the type of document and its intended purpose, the notary public would verify the identity, capacity, authority and intention of the client by different means.
Notarizing Powers of Attorney
Where an individual or a company wishes to invest overseas, the authorized representative would typically be required to present a POA to manage the investment.
Depending on the situation, the notary public may advise on the due execution of the POA by deed and in doing so, he/she would have to ensure the formalities required under the Companies Ordinance of Hong Kong and the Articles of Association are fulfilled. For example, where a representative seeks to execute a document on behalf of a company, the notary public will have to conduct searches on the company to ascertain that person’s authority in doing so under the Articles, and to examine the board resolution which authorized the appointment of that person.
Notarizing company documents generally
Companies may be required by their trading partners or various authorities to present reliable information about their constitution and structure, in the form of copies of the relevant documents like the Certificate of Incorporation and Articles of Association which are authenticated by a notarial certificate. The notary public may obtain the relevant statutory records from the Companies Registry and Business Registration Office of Hong Kong to ascertain the authenticity of the documents.
If the document sought to be notarized is not an original, the notary public will need to certify that it is a true, complete and up-to-date copy.
Notarizing foreign language documents
If the POA or the document sought to be notarized is prepared by lawyers working in other jurisdictions in a foreign language, it can be translated into a recognized language in Hong Kong (Chinese or English) such that the notary public can ascertain its content, its legal effect in the foreign jurisdiction and the extent of the powers granted, and ensure that its effect is also understood by the client.
Notarizing affidavits, affirmations and declarations
Where an affidavit/affirmation or declaration is sought to be notarized for use in foreign proceedings, the notary public may have to ensure that the affidavit/affirmation or declaration aligns with the formalities required by the foreign law.
The process of notarization
Identification and verification
The notary public will always require the presentation of evidence for identifying the party executing the document. For individuals, such evidence would typically be an original passport or ID and proof of address. For a business entity, the notary public will also confirm that the entity does exist and that the representative seeking to sign the document to be notarized has authority to do so. The purpose of identification, as is the very purpose of notarization, is to deter fraud and establish the legitimacy of the document.
Attestation and issuance of a notarial certificate
After verifying the above, the notary will witness the signature of the client, followed by the notary’s signature as attestor. The notary would then mark the document with his/her notarial stamp or seal registered with the High Court of Hong Kong and many foreign consulates in Hong Kong.
After notarization: Apostille and/or legalization
Depending on the type of the document and its intended usage, it may have to be further apostilled or legalized before it is recognized by the receiving party.
Apostille: Some signatory countries of the Hague Apostille Convention require the notarized documents to be further authenticated by way of an Apostille. An Apostille issued by the High Court of Hong Kong verifies the identity, signature and seal of a notary public, and supplements the notarial certificate in achieving international recognition.
Legalization: Countries which are not signatories to the Hague Apostille Convention may require a notarized document to be further legalized by the Embassy or Consulate of that country located in Hong Kong. The notary public would have to have his/her notarial information registered at the Consulate before the process.
Our firm has 4 notaries public who deal with documents for international use outside Mainland China. We are able to provide professional notarization services, together with the provision of Apostilles and, if necessary, assist in legalization at the various overseas Consulates present in Hong Kong.
[1] For more details, read our blogpost dated 10 July 2024 on this subject.
