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

I. Internal Discussion

Members noted the letter dated 15 July 1996 from the Hong Kong Society of Notaries (HKSN) to the Chairman of the Bills Committee which had been issued vide LegCo Paper No. CB(2) 1885/95-96.

2. Members were surprised that HKSN had not been consulted on the Committee Stage Amendments (CSAs) proposed by the Administration in the light that HKSN was envisaged to play an active participatory role in the disciplinary function and in drawing up the rules to define such role, and its members would be most directly affected. Members also noted that HKSN did not support the Administration’s proposal for the Chief Justice to be the ultimate authority for appointing/disciplining notaries public, which was different from what they understood from the Administration. Members agreed to seek clarification from the Administration.

II. Meeting with the Administration

3. The Chairman asked and Mr Paul TANG explained that it was not considered the right time to consult HKSN on the CSAs before the Bills Committee had the opportunity to comment on them. The Chairman reiterated the request of the Bills Committee that the Administration should meet with HKSN to discuss draft CSAs and draft Rules when these were ready.

4. Mr Albert HO also sought clarification regarding the stance of HKSN towards the Administration’s proposal. Mr TANG referred to the letter dated 19 June 1996 from the Director of Administration (issued vide LegCo Paper No. CB(2) 1642/95-96) and said that it was clear that the Administration could not reach agreement with HKSN on the matter. However, it was the impression of the Administration during that and previous discussions with the HKSN that it did not object completely to the proposal of the Chief Justice being the ultimate authority for appointing/disciplining process. He stressed that the Administration’s stance remained the same despite the letter dated 15 July 1996 from HKSN. At the Chairman’s suggestion, members agreed that the Clerk should forward the latest draft CSAs with a summary of the forthcoming discussion on them at the meeting to HKSN for their comment. As a parallel exercise, members also agreed that the Clerk should clarify with HKSN whether its members had been consulted on its proposal for the appointment of a Disciplinary Tribunal and whether there had been indications of support from them. Mr HO further suggested and members agreed that representatives from HKSN should be invited to the next meeting.

Clerk

Clerk

Clerk

5. Members then proceeded to study the Administration’s response to the points raised by members at the fourth meeting of the Bills Committee on 27 June 1996 which had been issued vide LegCo Paper No. CB(2) 1848/95-96. The gist of their deliberation is summarised in the following paragraphs.

Singapore’s Notarial Public Act

6. Members noted that the term “other misconduct” in section 5 of the Singapore’s Notarial Public Act was not defined and a formal definition of the term could not be obtained. Mrs Miriam LAU asked and Mr Stephen Fisher agreed to try again to find out from Singapore the meaning of the term and whether there were any precedent cases.

Adm

Draft Committee Stage Amendments

7. The Chairman suggested and members agreed that the Bills Committee would only deliberate on the principles of the draft CSAs after they had considered comments from HKSN. Members therefore proceeded to study the technical aspects of the draft CSAs clause by clause.

Proposed section 42(1)(a)

8. Members noted that the phrase “and where it appears to him having regard to paragraph (b) that it would be appropriate so to do” had been deleted.

Proposed section 42(1)(a) - fines/censure for misconduct

9. The Administration did not consider it necessary for the Chief Justice to fine or publicly censure a notary public for misconduct as suspension for a specific period of time should provide the Chief Justice with flexibility in taking any disciplinary action. Mrs Miriam LAU remarked that the Solicitors Disciplinary Tribunal had a whole range of disciplinary powers against solicitors for misconduct. She supplemented that although an elaborate model was not desirable for regulating the professional conduct of notaries public, reference could be made to the English model which was in fact the existing regulatory framework for notaries public. In this connection, Legal Adviser drew members’ attention to the letter dated 11 May 1996 from the Administration (issued vide LegCo Paper No. CB(2) 1291/95-96) and reminded the meeting that apart from suspension and removal, the Court of Faculties of Archbishop of Canterbury (the Court) in England had the power to admonish the notary while making him pay the costs of the hearing or to order the notary concerned to indemnify the complainant for actual loss suffered as a result of the notary’s misconduct. Mr TANG responded that a simple model was preferred to avoid any drastic change and the Court did not impose fine on notary as such. Members were of the view that although it might not be necessary to follow exactly the model of the Solicitors Disciplinary Tribunal in the light that the breadth of notarial work was not the same as that of the solicitors, the Chief Justice should have the power to order punishments including removal, suspension, fines, costs and censure. The Administration agreed to consider redrafting the CSAs.

Adm

Proposed section 42(1)

10. The Administration proposed to set out different criteria to remove or suspend a notary public from the Register of Notaries Public. At Mr Ronald Arculli’s suggestion, members agreed to have a list of circumstances for punishments and then a list of allowable punishments so that the Chief Justice could have the discretion to order the appropriate punishment, having regard to the seriousness of the misconduct. The Administration agreed to redraft the CSAs along such line of thinking.

Adm

Proposed section 42(5) and (6)

11. Members noted that the powers of the Chief Justice to make enquiries in respect of a disciplinary case had been set out in the legislation and could be delegated from the Chief Justice to members of an enquiry panel appointed by him. Mr Fisher explained that the powers of the Chief Justice in this respect was modelled after that of the Barrister Disciplinary Tribunal with minor adjustment. The Chairman further asked and Mr Fisher responded that the police and the officers of the court were required under the Legal Practitioners Ordinance to give assistance to the Barrister Disciplinary Tribunal and its enquiry panel. However, such a provision for the officers of the court was not necessary because the Chief Justice could order such officers directly and delegate such powers to the enquiry panel. In this regard, Legal Adviser queried how an enquiry panel would exercise the power of punishing persons guilty of contempt as provided for in subsection (5)(b)(iii) in practice. Mr Fisher pointed out that it was contemplated that the Chief Justice and the enquiry panel, if so delegated, would have the powers as vested in the Court or in any judge for the purpose of making inquiries. They could therefore impose fine or even imprisonment for up to one month. Mr Albert HO wondered whether it was appropriate to empower the enquiry panel to impose imprisonment and therefore reserved his position on the matter.

12. At members’ request, the Administration agreed to consider whether words used could keep pace with the present technological developments, e.g. whether “document” covered floppy discs, electronic messages, etc., and whether “gaoler” was still an appropriate word.

Adm

Proposed section 42(6)(d)

13. Members noted the revised draft of the proposed section. Mr Albert HO asked whether the Chief Justice should give reason in writing for not following any recommendation of the enquiry panel. Mr Fisher agreed with him but said that such a stipulation could be set out in the rules to be drawn up. In response to members’ enquiry, Legal Adviser pointed out that it was more the current practice to include the provision in principal legislation to require a quasi-judicial body to give reason for its decision, which could be subject to judicial review. Members therefore requested the Administration to consider stipulating in the principal legislation that the Chief Justice had to give reasons for accepting or not accepting findings and recommendations of an enquiry panel. At the suggestion of the Legal Adviser, the Administration was also asked to consider whether the word “or” between the words “finding” and “recommendation” should be replaced by “and”.

Adm

Adm

14. Mr TANG said after revising the CSAs, he would discuss them with HKSN and inform members of the result of the discussion accordingly. However, he reaffirmed the Administration’s position that the Chief Justice should have the ultimate authority in appointing/disciplining notaries public.

Adm

Proposed section 43A

15. Legal Adviser reminded members that the Chief Justice would make rules in the form of subsidiary legislation which would be endorsed by the LegCo by negative procedure. Members were concerned that the profession might not be duly consulted when the rules were drawn up and the LegCo might not have sufficient time to study them when they were tabled. To address members’ concern, Mr TANG agreed to consider including in the Chief Secretary’s Speech in the resumption of the Second Reading debate an assurance that there would be adequate consultation time with the legal profession and the LegCo Panel on the draft rules before they were gazetted.

Adm

Chairman’s questions on the Bill

Section 40A(1)(a)(ii)

16. The Chairman asked and Mr TANG responded that the Judiciary would be asked to set out how the Chief Justice would specify an examination under this provision in the rules to be drawn up.

Section 40A (1)(b)(ii)

17. The Chairman and Mr Albert HO queried why the Chief Justice should be given the discretion not to allow an application to take the examination. Mr Ronald Arculli remarked that an applicant should be disallowed to take the examination if he was not qualified to be appointed as a notary public. The Administration shared the same view. Mr Arculli reminded the meeting that the Bill did not have a disqualification section. In this connection, Legal Adviser advised that the intention of the discretion might be to allow someone to take the examination even though he had yet to meet the qualifying requirements at the time of taking the examination and before he was actually qualified for appointment as notary public. It would be a discretion to be exercised by the Chief Justice judiciously. However, Mr HO was still concerned about how the Chief Justice would exercise his discretion judiciously. To address Mr HO’s concern, Mr TANG undertook to consider elaborating more on the drafting.

Adm

Section 40A (3)(a)

18. The Chairman still had reservation on the words “in case” and Mr Fisher undertook to discuss with the law draftsman to see whether the words could be replaced by “if” or by “where” as considered appropriate.

Adm

Section 41

19. The Chairman maintained that the words “shall continue” were not appropriate. Mr Ronald Arculli suggested that the words “shall keep” could be used. In response to the Chairman’s enquiry, Mr Fisher explained that replacing the phrase “during office hours” with “by appointment” could avoid the need to deploy designated staff to cater for such request during office hours which in practice rarely occurred. Mr Arculli held the view that if the documents were open to public, they should be accessible to the public without the need to make appointment. He cautioned that it was a discouragement of open access by legislative mean. The Chairman shared his view. Mr Fisher agreed to further discuss with the Judiciary.

Adm

Section 43(2)

20. The Chairman queried whether the sentence structure of the phrase “both a notary public and then registered as...” was appropriate. She further asked and Mr TANG agreed to consider deleting the word “both” in the phrase.

Adm

III. Date of Next Meeting

21. The next meeting would be held on Wednesday, 4 September 1996 at 2:30p.m..

22. The meeting ended at 10:30 a.m..

LegCo Secretariat
23 July 1996