LegCo Paper No.CB(2) 2128/95-96
(These minutes have been seen by the Administration)
Ref : CB2/BC/23/95

Minutes of the Sixth Meeting of the Bills Committee
on the Legal Practitioners (Amendment) Bill 1996

held on Wednesday, 4 September 1996 at 2:30 p.m.
in Conference Room B of the Legislative Council Building

Members Present :

    Hon Margaret NG (Chairman)
    Hon Ronald ARCULLI, OBE, JP
    Hon Mrs Miriam LAU Kin-yee, OBE, JP
    Hon IP Kwok-him
    Hon Ambrose LAU Hon-chuen, JP
    Hon Bruce LIU Sing-lee

Member Absent :

    Hon Albert HO Chun-yan - other commitment

Public Officers Attending :

Mr Paul TANG
Deputy Director of Administration
Mr Stephen FISHER
Assistant Director of Administration

Attendance by Invitation :

Hong Kong Society of Notaries
Mr CHAN Bing Woon, Council member
Ms Elsie LEUNG, Council member
Mr Paul LI, Council member
Mr Peter Mark, Council member
Ms Margarat LAU, Hon. Secretary

Staff in Attendance :

Mr Arthur CHEUNG
Assistant Legal Adviser 5
Mrs Betty LEUNG
Clerk to the Bills Committee
Chief Assistant Secretary (2) 3
Miss Flora TAI
Senior Assistant Secretary (2) 3

I. Internal Discussion

Members noted the latest submission dated 4 September 1996 from the Hong Kong Society of Notaries (the Society) under cover of LegCo Paper No. CB(2) 2062/95-96 which had been tabled at the meeting. The Chairman informed members present that the Administration had discussed revised Committee Stage amendments (CSAs) with the Society subsequent to the last meeting held on 17 July 1996, the latest draft of which was attached to the letter dated 30 August 1996 from the Director of Administration (issued vide LegCo Paper No. CB(2) 2043/95-96). Members noted that the Society was only prepared to accept the draft CSAs provided that its role and status were recognised in the Bill and that three additional amendments as set out in para. 2(d) in its latest submission were made. However, the Administration had declined to accept these three additional amendments. (The letter dated 30 August 1996 from the Director of Administration which had been issued vide LegCo Paper No. CB(2) 2042/95-96 referred.)

2. Members agreed to consider further views from the Society on the basis of the Administration’s proposal which had been agreed by the Bills Committee, i.e., the Chief Justice should have the ultimate authority in appointing/disciplining notaries public.

II. Meeting with the Hong Kong Society of Notaries

(Relevant papers are :

LegCo Paper No. CB(2) 1921/95-96 issued on 26 July 1996 LegCo Paper No. CB(2) 2005/95-96 issued on 20 August 1996 LegCo Paper No. CB(2) 2042/95-96 issued on 2 September 1996

LegCo Paper No. CB(2) 2062/95-96 issued on 4 September 1996)

3. Members agreed that representatives of the Administration should join them to meet the representatives of the Society. At the invitation of the Chairman, representatives of the Society briefed members on their latest submission and explained the rationale for the additional amendments proposed by the Society which included (a) requiring the Chief Justice to consult the Society on admission and discipline and other matters relating to notaries public; (b) defining the composition of the panel of enquiry to include members of the Society; and (c) statutory provision of mandatory membership of the Society. Members noted that the Society did not insist its previous proposal of setting up a Disciplinary Tribunal in place of the Chief Justice in appointing/disciplining notaries public They stressed that the Society had an important role to play for notarial work, particularly in setting up professional standard which would only be adhered to by all notaries public if there was mandatory membership.

4. The representatives refuted the Administration’s grounds as set out in the letter dated 30 August 1996 from the Director of Administration for refusing to accept the Society’s proposed amendments. They emphasised that the Society had a de facto regulatory power over notaries public although there had never been the need to exercise such power. In view of the fact that the Administration had agreed that the Society would play an important role in disciplining notaries public, they queried why the role of the Society could not be specified in the legislation. They also expressed dissatisfaction that (a) the Administration seemed to ignore the role of the Society and (b) the Administration had not actually explained why mandatory membership of the Society was not necessary. They did not accept the Government’s legal advice that statutory provision of mandatory membership of the Society would contravene the right of freedom of association protected by Article 22 of the International Covenant on Civil and Political Rights, which included the right not to associate. They held the view that the Administration should not discriminate against notaries public in the light that mandatory membership of the Hong Kong Bar Association and the Law Society of Hong Kong was assured by way of requiring the legal practitioners to hold valid practising certificates issued by either of them.

5. Mr Ronald ARCULLI asked and the representatives responded that instead of requiring the Chief Justice to consult the Society, the Society would accept the alternative of requiring applicants to seek endorsement of the Society before they applied for admission to a notarial examination as a matter of practice. Mr ARCULLI further asked and the representatives explained that the Society only sought to have representation on the enquiry panel and it had no intention of fixing the number in the panel despite the fact that it preferred to have a majority membership. In this connection, members noted that the number of members of the enquiry panel would be determined when the disciplinary rules were to be drawn up. In response to Mrs Miriam LAU’s enquiry, the representatives clarified that their proposed amendment to section 40A(1)(b)(iii) required that the Chief Justice "shall" instead of "may" consult the Society.

6. Responding to the representatives’ question of the purpose of membership, Mrs Miriam LAU was of the view that notaries public would join the Society for the provision of useful services. Although the Society had a role to play in regulating notaries public, a notary public could not ignore professional practice even though he was not a member of the Society. The Chairman and Mrs LAU then asked the representatives whether mandatory membership was needed in the public interest and to improve the professional standard of notaries public. The representatives expressed concern that absence of mandatory membership would make it impossible to have an unified standardised practice of notarial work. In this connection, Mr ARCULLI opined that financial support for any professional body was necessary for betterment of the profession and to ensure its continuous provision of services. Mrs Miriam LAU shared the view. She remarked that the Administration should consider statutory provision of mandatory membership of the Society in order to ensure its existence if it recognised the Society’s role in the regulatory system of notaries public. Responding to the Chairman, the representatives confirmed that if the first two proposed amendments were accepted, mandatory membership was still necessary for the Society to carry its functions as recognised by the legislation so amended.

III. Meeting with the Administration

7. The Chairman asked and Mr Paul TANG confirmed that the Administration remained opposed to the three additional amendments as put forward in the latest submission from the Society. At the invitation of the Chairman, Mr Stephen FISHER explained the reasons for the Administration’s refusal to accept the three additional amendments proposed by the Society which had been set out in the letter dated 30 August 1996.

Requirement of consulting with the Society

8. As regards the first proposed amendment, Mr FISHER said that it would be acceptable to the Administration if the Chief Justice was given the option either to consult the Society or not to. Mr ARCULLI opined that it might be appropriate to give the Chief Justice the discretion in deciding whether the Society should be consulted or not. However, the Chairman queried the rationale behind the Administration’s position that a provision requiring the Chief Justice to consult the Society was tantamount to recognition of its regulatory authority. Mr Bruce LIU then suggested that amendment could be made so that the Chief Justice could consult the Society or any other person. Mr TANG said that an amendment which gave the Chief Justice the discretion to decide whom to consult could be considered.

Composition of the enquiry panel

9. In response to Mr Bruce LIU’s enquiry, Mr FISHER explained that no disciplinary tribunal for notaries public, similar to the one previously proposed by the Society, had existed in other Commonwealth countries. He supplemented that there was no precedent in the relevant legislation of other jurisdictions which required consultation with the society of notaries public or defined the composition of the enquiry panel to include member of such society. However, the Chairman and Mr LIU were of the view that it was of primary importance to ensure that the future system of appointment of notaries public was workable. It might be desirable to make modification to such system even if there was no precedent provided that the modification did not contravene the basic principle of the present system. In this regard, Mr TANG reiterated that the composition of the enquiry panel would be prescribed when the rules, as subsidiary legislation, were drawn up by the Judiciary after consultation with relevant professional bodies. The Administration therefore considered not appropriate to specify the Society in the composition of the enquiry panel at the present stage. Yet, the Administration would suggest to the Judiciary to specify inclusion of member of the Society in the enquiry panel in the rules.

Statutory provision of mandatory membership

10. On the question of mandatory membership, Mr TANG reiterated that the Society was not a regulatory body in the light that the Chief Justice possessed the ultimate authority in appointing/disciplining notarial public. The Government’s legal advice was that a statutory provision of mandatory membership of the Society would contravene the Bill of Rights, i.e., the right to freedom of association since it was not a regulatory body.

11. Assistant Legal Adviser drew members’ attention to the relevant provisions of the Hong Kong Bill of Rights and highlighted that certain circumstances had been prescribed in Article 18 to justify restriction on the freedom to or not to associate as follows :

"(2) No restriction may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others."

A need to protect any of those public interests had therefore to be established before lawful prescription of restriction could be placed on the freedom not to associate. At the Chairman’s request, he agreed to provide a written opinion on the matter for members’ further consideration. In response to the Chairman’s enquiry, Mr TANG confirmed that the Administration had nothing to add to its legal advice which had been issued to members. In the light that the Society was not a regulatory body, the Administration maintained that the circumstances prescribed in Article 18 of the Hong Kong Bill of Rights did not apply to the Society and therefore there were no valid grounds to justify statutory provision of mandatory membership of the Society. Mr TANG said that the Hong Kong Bar Association and the Law Society of Hong Kong, unlike the Society, possessed the ultimate authority in appointing/disciplining the barristers and solicitors respectively and such power had legal status. He added that mandatory membership was not necessary even though the Society had a role to assist the Chief Justice. Mr IP Kwok-him asked and Mr TANG responded that the Archbishop of Canterbury might consult the Society in appointing/disciplining notaries public under the present system.

ALA5

12. The Chairman suggested members to consider carefully whether the role of the Society in the localised system of appointment should be recognised in the legislation in view of the fact that it had a 20-year history, and that it all along had been assisting the Archbishop of Canterbury in appointing/disciplining notaries public.

13. After discussion, the Chairman suggested and members agreed that the Administration should provide further response to the latest submission of the Society, if any, for members’ consideration.

Adm

IV. Date of Next Meeting

14. The next meeting would be held on Wednesday, 25 September 1996 at 2:30p.m. to continue discussion with the Administration, to conclude deliberations on whether the Society should be given a role in the legislation and whether it should be given statutory mandatory membership, and to study the latest draft Committee Stage amendments prepared by the Administration.

15. The meeting ended at 4:35 pm.

LegCo Secretariat
10 September 1996

Last Updated on 10 December 1998