REMOTE AND ONLINE EXECUTION AND WITNESSING OF DOCUMENTS

May 2022

The lingering Covid-19 pandemic has inevitably barred the social contacts between lawyers and clients. The social distancing policy and travel ban have also affected the daily legal practice. Online meetings have become a norm but execution and witnessing of documents still from time to time pose a problem. Whether the signatures of the parties need to appear on the same physical document and how the signatures can be “witnessed” are issues to be settled.

While there has not yet been any statute or case law on the validity and viability of virtual execution in Hong Kong save and except the Electronic Transactions Ordinance Cap.553 which is most relevant and pointing to recognition of an electronic signature, it becomes common for a contract to allow execution in counterparts and in different places by way of electronic means. If the contract, for any reason, has not explicitly provided for the counterpart execution or e-signing possibility, it can create a problem in particular if the contract requires witnessing or the contract is intended to be a deed which carries heavier legal implications. For some specific legal documents such as wills, declarations, affidavits and notarized documents which require statutory and prescribed formalities, they still require face to face and physical execution.

Apart from execution itself, the witnessing of the document is also a problem though in general, witnessing is not a legal requirement. During the past few years of the Covid-19 pandemic, some witnessing has been done by video or online mode but not physically. What is the weight of this kind of distant witnessing in case of dispute or litigation under the local law is to be seen, though it has provided an exit to some practitioners to resolve the witnessing difficulty meanwhile.

It is worthwhile to note that in some jurisdictions, the remote (not exactly virtual) execution and witnessing are codified into statues and they briefly run as follows:

The contract in question expressly allows online or remote signing and witnessing of the document.
A time is fixed for the online conference. Within reasonable time before the online conference, depending on the complexity and volume of document, the signatory and the witness both receive the same document with version code for identification.
During the online conference but before execution, the signatory and the witness check the document in his or her possession together to make sure that the document is exactly the same.
After confirmation that they hold the same document, the signatory can proceed to sign the document “before” the witness and the witness then signs the “same” document as a witness.
There is a statement printed on each of the signatory’s and the witness’s counterpart that the document is signed and witnessed remotely and proper steps have been taken before the parties’ signing.
As a last step, the two counterparts are then collected and combined to form one original document.

While the remote and online execution and witnessing of documents are forming part of the new normal, it seems that at least a comprehensive Practice Direction to the practitioners is desired.