Minutes of the first meeting of the Bills Committee
to study the Legal Practitioners (Amendment) Bill 1996

Action
Column

Election of Chairman

Miss Margaret NG was elected Chairman of the Bills Committee.

Written submission

2. Members noted that the LegCo Panel on Administration of Justice and Legal Services had received a representation of the Hong Kong Society of Notaries (HKSN) at its meeting on 1 April 1996. Its written submission with relevant attachments had been issued vide LegCo Paper No. PL 1102/95-96. Members also noted that the Administration had declined to support the proposal of the HKSN to add a statutory provision for mandatory membership for all notaries on the Register to the Bill.

Meeting with the Administration

Briefing on the Bill

3. At the invitation of the Chairman, Mr Paul TANG briefed Members on the background and proposals of the Bill as set out in the Legislative Council Brief issued by the Chief Secretary’s Office on 30 January 1996 (Ref : CSO/ADM/CR 4/3221/86(95)V). He explained that a notary public would be required to pass a qualifying examination to be conducted by the Judiciary through a local university. The status of all practising notaries public before the enactment of the Bill would remain unchanged. He further informed the meeting that the Hong Kong Bar Association and the Law Society of Hong Kong supported the proposed local appointment system for notaries public in the Bill.

Governance of the notaries public in Commonwealth countries

4. As requested at the meeting of the LegCo Panel on Administration of Justice and Legal Services held on 1 April 1996, the Director of Administration had provided information regarding the governance of notaries public in Commonwealth countries in his letter of 16 April 1996 (issued vide LegCo Paper No. CB(2) 1032/95-96).

5. At the invitation of the Chairman, Mr Stephen Fisher briefed Members on the letter. He explained that notaries public of a majority of these countries were governed by their own legislation. The practices in a few other Commonwealth countries which were subject to the governance of the Master of Faculties in England were similar to Hong Kong. They also adopted a similar disciplinary scheme as in England. In this connection, Mr Fisher agreed to provide relevant information regarding the practice in Singapore where notaries public were governed by its own law for Members’ reference.

Adm

6. In response to the Chairman’s enquiry, Mr Fisher informed the meeting that all notaries within three miles of the City of London were obliged to be members of the Scriveners’ Company which was the examining body and had an ancient charter. Notaries practising in England and Wales outside the City area belonged to another Notaries Society. However, the power to discipline and regulate notaries public belonged to the Master of Faculties at the Faculty Office of the Archbishop of Canterbury. The Master of Faculties would only act on complaint because he was considered not appropriate, as a high court judge, to take over both the roles of prosecution and adjudication. The Chairman suggested and Mr Fisher agreed to provide information, with respect to England and other Commonwealth countries, on (a) how a complaint would initiate ; (b) who would investigate ; and (c) how the relevant authorities would handle complaints against notaries public.

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Statutory provision for mandatory membership

7. Mr TANG said that the purpose of the Bill was to introduce a local appointment system for notaries public in Hong Kong. The Administration had no intention to initiate major changes to the present notary system. The HKSN’s proposal for mandatory membership was not supported on the grounds that (a) disciplinary power would be exercised by the Chief Justice but not by the HKSN (although Chief Justice might seek advice from HKSN as well as other legal professional bodies) ; (b) it might contravene the right to freedom of association protected by Article 22 of the International Covenant on Civil and Political Rights, which included the right not to associate, having regard to the fact that HKSN was not a regulatory nor disciplinary body ; (c) the Administration could not see why HKSN could not continue its present advisory role, with voluntary membership ; and (d) most notaries public were solicitors subject to the professional disciplinary action of the Law Society of Hong Kong and they could be subject to dual disciplinary control if the HKSN became a regulatory body. In this connection, the Chairman asked and the Administration agreed to explain in writing (a) how the Law Society could discipline notaries public for wrong or irregular professional conduct ; (b) whether the Law Society had ever exercised such power, when and under what circumstances ; (c) the number of notaries public who were not HKSN members. At the suggestion of Mr Bruce LIU, Mr Fisher also undertook to liaise with the Attorney General’s Chambers (a) to find out whether there was any statutory provision for compulsory membership of notaries public in any other common law jurisdictions ; and (b) to clarify why the word "may" was used instead of "will" with reference to the third sentence of paragraph 10 of the LegCo Brief.

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Regulatory framework for notaries public

8. Mr Albert HO referred to the fact that past experience of the Master of the Faculties at the Faculty Office of the Archbishop of Canterbury of England could not be referred to once the notary system was localised. He expressed concern that a regulatory framework was lacking in the Bill and queried why there were no proposed criteria and procedure for the Chief Justice to follow when a complaint was received. Mr TANG drew Members’ attention to clause 43A which empowered the Chief Justice to make rules. However, the Chairman remarked that the provision in the Bill for making rules for determining the form and manner in which applications were to be made did not cover the criteria for taking disciplinary action. Mr TANG undertook to clarify how the words "form and manner" of application in new section 43A covered "rules".

9. The Chairman and Mr Ambrose LAU shared Mr Ho’s view. The Administration was therefore asked to consider the need to include in the Bill provisions relating to disciplinary action against notaries public, such as the criteria to act on complaints and to strike a notary public off the register. In this regard, Members also suggested the Administration to consult the HKSN, the Bar, the Law Society, and the Chief Justice and make reference to overseas and local practices.

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Internal discussion

10. At the suggestion of Mr IP Kwok-him, Members agreed that the Bar and the Law Society should be asked to explain why they supported the HKSN’s proposal for mandatory membership. Mr Albert HO also suggested that the position of the HKSN should be ascertained as to whether they would accept a statutory regulatory framework of notaries public if a statutory provision for mandatory membership was to be added to the Bill. In this regard Members further agreed that the Administration and the HKSN should work together in proposing such a regulatory framework.

Clerk

Date of next meeting

11. The next meeting would be held on Monday, 20 May 1996 at 2:30 p.m. to continue discussion with the Administration.

12. The meeting ended at 5:25 p.m..

LegCo Secretariat
6 May 1996