LegCo Paper No.CB(2)445/96-97
(These minutes have been seen
by the Administration.)
Ref : CB2/BC/23/95
Minutes of the Eighth Meeting of the Bills Committee
on the Legal Practitioners (Amendment) Bill 1996
held on Friday, 18 October 1996 at 4:30 pm in Conference Room B of the Legislative Council Building
Members Present :
Hon Margaret NG (Chairman)
Hon Bruce LIU Sing-lee
Hon IP Kwok-him
Hon Ambrose LAU Hon-chuen, JP
Members Absent :
Hon Ronald ARCULLI, OBE, JP
Hon Mrs Miriam LAU Kin-yee, OBE, JP
Hon Albert HO Chun-yan
Public Officers Attending:
- Mr Paul TANG
- Deputy Director of Administration
- Mr Stephen FISHER
- Assistant Director of Administration
Clerk in Attendance:
- Mrs Betty LEUNG
- Chief Assistant Secretary (2) 3
Staff in Attendance:
- Mr Arthur CHEUNG
- Assistant Legal Adviser 5
- Miss Flora TAI
- Senior Assistant Secretary (2) 3
I. Confirmation of the minutes of the last meeting
The draft minutes of the seventh meeting held on 25 September 1996 had been issued vide LegCo Paper No. CB(2)148/96-97. No amendment had been received and the minutes were taken as confirmed.
II. Meeting with the Administration
Inclusion of a ceiling of fine as a disciplinary sanction
2. It was proposed at the seventh meeting that a provision for fines up to a certain limit be included as a disciplinary sanction that might be directed by the Chief Justice against a notary public under new proposed section 42(1)(b). The Hong Kong Society of Notaries (the Society) had indicated its support to the proposal in their letter dated 3 October 1996 which had been issued to members vide LegCo Paper No. CB(2) 74/96-97. However, members noted that the Administration remained of the view that such a provision was not necessary and other sanctions would be adequate. (The letter dated 3 October 1996 from the Director of Administration which had been issued to members vide LegCo Paper No. CB(2) 42/96-97 referred). Mr Bruce LIU agreed with the Societys proposal on the grounds that the provision could provide more flexibility by empowering the Chief Justice to decide whether or not to impose a fine and it would not contravene international covenants. The chairman asked and Assistant Legal Adviser confirmed that such a provision was legally and technically feasible. The chairman and Mr IP Kwok-him were in support of the proposal. The Bills Committee therefore decided to provisionally support the proposal to include a provision for imposing a fine (up to a certain limit) on a notary public as a disciplinary action under new proposed section 42(1)(b). As regards the appropriate amount for the limit, Mr LIU suggested and members agreed that the Clerk should seek the view of the Society on the matter.
| Inclusion of "unsound mind" as a ground for complaint against a notary public for the Chief Justice to consider setting up an enquiry panel | Clerk |
3. Members asked the Administration to consider whether a new provision should be added to proposed section 42(1)(a) to deal with a notary public of an unsound mind at the last meeting. The Administration agreed to include "unsound mind" as a ground for complaint against a notary public for the Chief Justice to consider setting up an enquiry panel in their letter of 15 October 1996 (issued vide LegCo Paper No. CB(2) 162/96-97). However, members noted that the Society had disagreed with such a proposal in their letter of 3 October 1996 on the grounds that mental illness as a sickness should not be treated as conduct likely to result in disciplinary action. In response to Mr Bruce LIUs enquiry, Assistant Legal Adviser explained that the Legal Practitioners Ordinance had made three references to the mental state of a solicitor, each leading to some consequences on his practice, i.e. (a) a solicitors mental and physical health as a factor for invoking the power under section 8A; (b) whether the powers conferred by section 98 of the Mental Health Act 1983 had been exercised in respect of a solicitor under section 26A(1)(g); and (c) a solicitor in a contentious business had died or became incapable of acting under section 61(1). Assistant Legal Adviser added that no similar reference had been made in the Ordinance for barristers. Mr LIU said that he inclined to support the inclusion of "unsound mind" in proposed section 42(1)(a) on the grounds that (a) the Chief Justice could not direct any disciplinary sanction against a notary public of an unsound mind in the absence of such a provision and (b) such a provision provided better safeguard for the protection of the general public. The chairman and Mr Ambrose LAU shared his view. However, Mr IP Kwok-him held the view that it might not be necessary to include "unsound mind" as a ground for disciplinary sanction in the principal legislation. After discussion, members suggested the Administration to amend the proposed provision of "is of unsound mind" in line with the formulations used in the Architects Registration Ordinance (Cap. 408) and the Engineers Registration Ordinance (Cap. 409). Members further suggested that besides mental infirmity, physical infirmity should also be a ground for disciplinary action. Mr Stephen FISHER agreed to revise the draft CSA accordingly.
| Statutory mandatory membership of the Hong Kong Society of Notaries | Adm |
4. Members noted the letter dated 14 October 1996 from the Director of Administration (issued vide LegCo Paper No. CB(2) 137/96-97 on 15 October 1996), asking members to review the decision to introduce a Committee Stage amendment (CSA) to provide for statutory mandatory membership of the Society. Mr Paul TANG stressed that the Administrations interpretation of the LegCo legal advice was based on para. 15 of the Assistant Legal Advisers paper on "Compatibility of Compulsory Membership with Article 18 of the Hong Kong Bill of Rights" and para. 4 of the minutes of the seventh meeting of the Bills Committee. In this regard, the chairman asked and Assistant Legal Adviser said that he had set out in his paper the legal principles underpinning the Hong Kong Bill of Rights for the protection of the right to freedom of association. He said that he had been extremely carefully in providing the legal advice in view of the fact that the issue was to a large extent a matter of judgement and it was ultimately for the court to decide, taking into account societal development. The European Court of Human Rights had made reference to not only legal points but also social aspects in interpreting the Bill of Rights. He added that any legal advice given to Members was only one of the factors for LegCo Members to consider in making any policy decision. In this respect, his advice had been well-used by members in assisting them to focus on the proper issues. He said that the Bills Committee had decided to support the proposal of a statutory provision on mandatory membership of the Society on the basis of a social need (i.e. whether the survival and continued role of the Society were necessary for the public good in maintaining the standard of notaries in Hong Kong after localisation), and not on the basis of the inclusion of members of the Society in the composition of the enquiry panel in law.
5.The chairman clarified that (a) the Bills Committee did not go against the advice of its legal adviser in recommending mandatory membership of the Society which was clear from the legal advice itself and the minutes of the seventh meeting; (b) the public interest element fully justified mandatory membership of the Society and overcame the difficulties, identified by the Assistant Legal Adviser for the Bills Committees consideration to ensure its compatibility with the right to freedom of association protected by Article 22 of the International Covenant on Civil and Political Rights, on the grounds that the Society had an indispensable public function to play. Members took the view that the issue was a judgement of social need which was the basis of the decision of the Bills Committee. In this connection, Mr TANG urged members to reconsider the matter in the light that (a) statutory mandatory membership would contravene the Bill of Rights despite the fact that it was up to the court to decide ultimately; (b) the Society had been able to survive and play its role without mandatory membership in the past; and (c) it had been the existing system for a notary public to practise once he passed the qualifying examination and mandatory membership would mean a change to the existing system. In this regard, the chairman reminded that a solicitor had to sign an undertaking to apply to become a member of the Society upon the issue of a Notarial Faculty to him under the current system. All notaries public had been members of the Society until recently when one notary refused to join. Members accepted the Societys concern that others might follow suit and were of the view that better safeguard was necessary. Notwithstanding the letter from the Director of Administration and concerns expressed by the Administration, members confirmed that their decision on the matter remained the same. In this regard, the chairman asked the Clerk to reply in writing to the Director of Administration, explaining members stance on the matter.
| Committee Stage amendments to be moved by the Administration | Clerk |
6. At the invitation of the chairman, Mr Stephen FISHER took members through the fourth draft of the proposed CSAs to be moved by the Administration which had been issued vide LegCo Paper No. CB(2) 162/96-97. Members noted that the Administration had taken into account the comments of the Assistant Legal Adviser in the draft, as set out in his letter of 2 October 1996 to the Director of Administration (issued vide LegCo Paper No. CB(2) 75/96-97). Mr FISHER informed the meeting that the Administration intended to amend proposed section 42(1)(a)(i) to read as "has become bankrupt or has entered into a composition or scheme of arrangement with his creditors within the meaning of the Bankruptcy Ordinance (Cap. 6)", in order to be in line with the existing Bankruptcy Ordinance (Cap. 6). He further explained that the Administration would amend the proposed section following the enactment of the Bankruptcy (Amendment) Bill.
Draft Committee Stage amendments prepared by the Assistant Legal Adviser
7. The chairman asked and Assistant Legal Adviser took members through his draft CSAs which had been issued vide LegCo Paper No. CB(2) 80/96-97 on 9 October 1996. Assistant Legal Adviser explained that the new proposed section 41A required a person who was registered as a notary public to apply as soon as reasonably practicable to become a member of the Society or maintain such membership because the Society should have the ultimate power, as a matter of logic, to decide whether to accept a person as a member or not. He supplemented that new proposed section 42(1)(a)(iv) was added for the effect that a person who did not comply with new proposed section 41A might be subject to the disciplinary action by the Chief Justice. He cautioned that a person who did not become a member of the Society would not be automatically struck off from the Register of Notaries Public according to his proposed draft. It would be up to the Chief Justice to decide, having regard to circumstances why a particular notary public did not become a member of the Society. Such an approach of drafting attempted to strike a balance between the interest of notaries public with that of Society. He urged members to make a policy decision in this respect as to the appropriate degree of sanction to be prescribed in the provisions.
8. Mr Stephen FISHER remarked that the complication in drafting these provisions demonstrated the reasons why the Administration did not support statutory mandatory membership of the Society, i.e. the Society was not a regulatory body and there was no control over the Society which was a private body. The chairman and Mr LIU were of the view that such provisions, which allowed flexibility for the Chief Justice, had not actually provided for mandatory membership of the Society in a strict enforcement sense. However, Mr TANG remarked that it was still unfair to the notary public who was unreasonably refused of membership of the Society because he did not know how the Chief Justice would decide in the end. The chairman and Mr LIU said that trust should be placed in the Chief Justice to exercise his discretion. The chairman asked and Assistant Legal Adviser responded that although an express provision requiring the Society to refuse membership to applicants on reasonable grounds could be added, the existing draft should be able to achieve the same effect. Notwithstanding the Administrations stance on the issue, the chairman invited the Administration to give any view on the drafting which they might have. The chairman also asked the Clerk to relay members concerns to the Society for a response, i.e. refusal of membership without reasonable ground or imposition of unreasonable amount of membership fee. At Mr LIUs suggestion, the Clerk would also forward the relevant CSAs relating to mandatory membership to the Society for their comment. Members noted that Assistant Legal Adviser might need to revise the CSAs after taking into account the latest draft CSAs to be moved by the Administration.
| 9. As regards section 42(6)(a), the chairman asked whether it was necessary for an enquiry panel to be composed of not less than 3 persons if the notary public being investigated was considered becoming incapacitated by physical or mental illness. Mr Stephen FISHER responded that the required number was a common practice and two medical practitioners would be required to sit in the panel for such kind of cases. | Clerk
Clerk |
III. Date of next meeting
10. The next meeting would be held on Thursday, 31 October 1996 at 5:00 pm. to conclude deliberations on the Bill.
11. The meeting ended at 6:55 pm.
LegCo Secretariat
4 November 1996
*-- other commitments
Last Updated on 13 Nov, 1996
