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

Confirmation of minutes of the last meeting

The draft minutes of the second meeting held on 20 May 1996 had been issued vide LegCo Paper No. CB(2) 1473/95-96 on 4 June 1996. No amendment had been received and the minutes were taken as confirmed.

Meeting with the Hong Kong Society of Notaries

(Relevant papers -

LegCo Paper No. PL 1102/95-96 issued on 25 March 1996

LegCo Paper No. CB(2) 1333/95-96 issued on 17 May 1996

LegCo Paper No. CB(2) 1448/95-96 issued on 31 May 1996

LegCo Paper No. CB(2) 1449/95-96 issued on 31 May 1996

LegCo Paper No. CB(2) 1461/95-96 issued on 4 June 1996

LegCo Paper No. CB(2) 1475/95-96 issued on 4 June 1996)

2. Members agreed that representatives of the Administration should join them to meet the representatives of the Hong Kong Society of Notaries (HKSN).

Statutory provision for mandatory membership

3. The Chairman welcomed the representatives of the Hong Kong Society of Notaries for attending the meeting. At the invitation of the Chairman, Mr Peter Vine informed the meeting that there was mandatory membership for notaries public within a circuit of three miles of the City of London with the Scrivener’s Company, which had disciplinary powers. Outside London, there were a number of different societies of notaries public in respect of which membership was not mandatory and the notaries public were subject to the disciplinary powers of the Master of Faculties at the Faculty Office of the Archbishop of Canterbury. Mrs Miriam LAU asked and Mr Vine responded that notaries public in the London area were subject to parallel jurisdictions of that of the Scrivener’s Company and that of the Master of Faculties. Mrs LAU then asked whether problem existed outside London where notaries public only fell within the jurisdiction of the Master of Faculties. Mr Vine informed the meeting that no problem a disciplinary nature had come to his knowledge, nor in the London area where parallel jurisdictions existed.

4. Mr Vine explained that mandatory membership for HKSN was necessary because (a) Hong Kong was similar to the situation in London area where there was a large number of notaries public concentrated in a small place, (b) the Law Society of Hong Kong did not have any jurisdiction over notaries public in respect of their notarial work, and (c) there was a need for a supervisory body with adequate powers to promote a high standard of notarial work.

Regulatory framework for the governance of notaries public

5. Members noted from the letter dated 16 May 1996 from HKSN that a regulatory framework for notaries public had been drafted and approved by the Council of the HKSN, subsequent to the meeting of the LegCo Panel on Administration of Justice and Legal Services held on 1 April 1996. The Chairman asked and Mr Peter Vine confirmed that it was modelled on the regulatory framework of the Hong Kong Bar Association. Mr Angus Forsyth added that the proposed regulatory framework sought to set up a formalized and transparent system of disciplinary procedure and control.

6. The Chairman asked whether HKSN had worked out the basis for disciplinary action and what it was. Mr Vine said that the comprehensive code of practice for notaries which was of international standard would be referred to before initiating disciplinary action, although some of the rules might not be applicable to Hong Kong. He supplemented that the Chief Justice would make rules in this respect. In response to members’ enquiry, Mr Vine held the view that it was not practical to draw up a code of conduct for notaries public in Hong Kong.

7. Mr Albert HO asked and Mr Vine clarified that a notary public on the Register of Notaries Public (which was kept by the Supreme Court) would become a member of the HKSN. It was not proposed that HKSN should have the power of removing a member from the membership list, unless his name was struck off from the Register of Notaries Public or he failed to pay membership fee. Mr HO then commented that the regulatory framework should (a) prescribe the role of HKSN in the process of admission of notary public; (b) prescribe admission procedures to safeguard against possible arbitrary powers; and (c) tie in with the mandatory membership and the right to practice.

8. Mrs Miram LAU asked about the present role of HKSN. Mr Vine advised that HKSN was responsible for vetting the eligibility of applicants and informing members of any change in legislation related to notarial work. In response to Mrs LAU’s enquiry, Ms Margaret LAU explained the details of work of HKSN during the vetting process of an application for notary public. Mrs LAU further asked and Ms Margaret LAU confirmed that it was a matter of practice for HKSN to vet applications, rather than a matter of legal obligation. It was legal for a person who had passed the examination for notary public to apply directly to the Master of Faculties without the endorsement letter of HKSN.

9. The Chairman then concluded that members had yet to see the relationship between the proposed regulatory framework and mandatory membership. The Chairman referred to the letter dated 29 May 1996 from the Administration (issued vide LegCo Paper No. CB(2) 1449/95-96) which attached a copy of the Public Notaries (Conduct and Discipline) Rules 1993 made under section 57(4) of the UK Courts and Legal Services Act 1990 and suggested to the HKSN to make reference to such rules and to comment on them.

HKSN

Meeting with the Administration

(Relevant papers -

LegCo Paper No. CB(2) 1449/95-96 issued on 31 May 1996

LegCo Paper No. CB(2) 1493/95-96 issued on 5 June 1996

LegCo Paper No. CB(2) 1494/95-96 issued on 5 June 1996)

10. At the last meeting, members had raised a number of issues for the Administration to respond. At the invitation of the Chairman, Mr Stephen Fisher briefed members on their replies. The ensuing discussion is summarized in the following paragraphs.

Role of the Society of Notaries in Singapore

11. Members noted that the Administration had written to and was still awaiting a reply from Singapore for any information about the role of the Society of Notaries there.

Rules governing notaries public in England

12. Members noted that the Administration had provided a copy of legislative rules of England which set out the power to discipline a notary public (Appendix I to LegCo Paper No. CB(2) 1449/95-96).

13. Mr Paul TANG pointed out that the Chief Justice, who would be empowered to make rules on disciplinary procedures, would make reference to the Public Notaries (Conduct and Discipline) Rules 1993 as well as relevant legislation in other jurisdictions when such rules were to be made. Professional bodies would also be consulted.

Appropriate authority to be vested with the power to discipline notaries public

14. Members asked whether it would be more appropriate for the Supreme Court rather than the Chief Justice to be vested with the power to discipline notaries public. The Administration took the view that the Chief Justice should be the authority for appointing and disciplining notaries public in Hong Kong. However, members noted that the Administration would consider making rules for the setting up of disciplinary enquiry panel (with participation of legal practitioners) to consider complaints against notaries public and to make recommendations to the Chief Justice. In this regard, the Chairman asked and Mr TANG explained that such disciplinary rules would be made by way of subsidiary legislation.

Timeframe for enacting subsidiary legislation to handle complaints against notaries public

15. Members noted that it would take about six to eight months to draw up the disciplinary rules by way of subsidiary legislation since consultation with legal practitioners was required. Mr TANG supplemented that the rules would be drawn up after the enactment of the Bill and it was envisaged that they would be in place by early 1997 if the Bill was passed during the current session.

Power of the Chief Justice to revoke or re-instate the appointment of a notary public

16. As regards the circumstances under which an application could be made for the removal from registration of a notary public, members noted that the Administration had proposed three factors which included (i) professional or other misconduct; (ii) bankruptcy; or (iii) any other special circumstances considered appropriate by the Chief Justice. In response to the Chairman’s enquiry, Mr Fisher advised that these were modelled on the Singapore’s Notaries Public Act.

Submission of the Hong Kong Society of Notaries

17. Mr TANG clarified that the proposed notary appointment system in the Bill was not the same as that in Singapore and the main difference was that the Chief Justice was empowered to appoint and to remove notaries public instead of the Attorney General as was the case in Singapore. The system was therefore more independent in Hong Kong.

18. Mr TANG said the Administration was not convinced that another disciplinary body should be set up in Hong Kong to be responsible for the discipline of notaries public. He added that the present consultation process before admission by the Archbishop of Canterbury was an administrative arrangement only.

19. As regards the regulatory framework proposed by the HKSN, Mr Fisher expressed concern that the notaries public (who were also solicitors) would be subject to the disciplinary jurisdiction of both the Solicitors Disciplinary Tribunal and the Notaries Disciplinary Tribunal. He reiterated that the proposed regulatory framework represented a fundamental change to the regulatory structure of the legal profession in Hong Kong and more widespread consultation would be needed before a decision could be taken. Mrs Miriam LAU then queried whether the proposed regulatory framework would be inconsistent with the provision of the Bill which empowered the Chief Justice to exercise disciplinary powers. In reply, Mr TANG thought that the HKSN agreed that the Chief Justice should have the ultimate power to appoint and discipline notaries public. In this regard, Members noted that the independent Notaries Disciplinary Tribunal as proposed by the HKSN was to assist the Chief Justice in exercising his disciplinary powers. The Chairman then asked the Administration to consider (a) whether the regulatory framework proposed by the HKSN would work; and (b) whether HKSN could play any role in the proposed regulatory framework in the light of its status, administrative support and resources and other factors. In this connection, the Administration was asked to hold discussion with HKSN.

Adm

Way forward.

20. The Chairman suggested and members agreed that the Bills Committee would make a policy decision at the next meeting as to whether the regulatory framework proposed by the HKSN or the one in the Bill should be pursued. In this regard, Mr TANG pointed out that from previous discussions with the HKSN, it was understood that the HKSN only sought to assist the Chief Justice in discharging his statutory duties and did not seek to replace the Chief Justice. Members noted that the Administration would seek clarification with the HKSN on the role it expected to play.

Adm

21. To facilitate further consideration, members requested the Administration to consider:

1. setting out in the proposed section 42 (Removal from registration and suspension of notaries public and restoration) the grounds and mechanism for the removal of notaries public and the appointment of a panel to assist the Chief Justice in exercising such power if necessary; and
2. setting out the scope of the rules to be made by the Chief Justice under the proposed section 43A (Rules (notaries public)).

Adm

The Chairman suggested the Administration to conduct an interim review of its position on the Bill and to give an interim report at the next meeting. Mr TANG also proposed that draft Committee Stage Amendments to be moved by the Administration be tabled and considered by members at the next meeting.

Adm

Date of next meeting

22. The next meeting would be held on Thursday, 27 June 1996 at 8:30 a.m. to continue discussion with the Administration.

23. The meeting ended at 10:25 a.m..

LegCo Secretariat
8 July 1996