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

Confirmation of minutes of the last meeting

The draft minutes of the first meeting held on 16 April 1996 had been issued vide LegCo Paper No. CB(2) 1230/95-96 on 8 May 1996. No amendment had been received and the minutes were taken as confirmed.

Action

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Meeting with the Administration

2. At the invitation of the Chairman, the Administration briefed members on its replies to their questions raised at the last meeting. Members also agreed that the Administration’s replies should be sent to the Hong Kong Society of Notaries (HKSN) for any comments that they might have. Members then raised further questions to which the Administration responded. The gist of their ensuing deliberations is summarised in the following paragraphs.

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Notaries public who were not practising solicitors

Governance of notaries public in Singapore

(LegCo Paper No. CB(2) 1212/95-96)

3. In response to the Chairman’s enquiry, Mr Stephen Fisher said that he understood that there was a Society of Notaries in Singapore, but according to the Singapore’s Notaries Public Act, it was not a regulatory body and membership of the Society was not mandatory for notaries public. The Chairman further asked and Mr Fisher agreed to find out the role of that society in Singapore, in the light that the Attorney-General there was responsible for appointing and disciplining notaries public, for members’ information.

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Statutory provision for mandatory membership in other jurisdictions

Handling of complaints in England & other Commonwealth countries

Law Society of Hong Kong’s power over notaries public

Powers of the Chief Justice to make rules in proposed section 43A

(LegCo Paper No. CB(2) 1291/95-96)

4. Mr Ambrose LAU referred to the relevant legislation in the Canadian provinces of Alberta and Ontario which stipulated that the appointment of a notary public would be suspended if he ceased to be a member of the law society and asked the reasons for not having such provision in Hong Kong. Mr Fisher pointed out that a person could only apply as a notary public after he had been a practicing solicitor for seven years. There was no provision in Hong Kong to require a solicitor to continue to practise as a solicitor in order for him to continue to be a notary public. He further said that the Administration could consider including a similar provision in the Bill if members requested. However, he reminded members that there were currently one or two notaries public who were not practising solicitors and they would be suspended as notaries public if such a provision was added and eventually enacted as legislation.

5. Mrs Miriam LAU asked why it was proposed to vest the powers to discipline on the Chief Justice (a person) while such powers were vested on the court (e.g. the Court of Faculties of Archbishop of Canterbury) in other jurisdictions. Mr Fisher explained that the Chief Justice in Hong Kong was the nearest equivalent that could be found in terms of standing to the Archbishop of Canterbury in England. It was for this reason that the Chief Justice was made the authority for the appointment of notaries public. As regards the power to discipline, the Administration failed to find any equivalent body in Hong Kong similar to the Court of Faculties in England. Mrs LAU further asked whether the Administration would object to vest the power on the High Court or the Supreme Court. Mr Paul TANG said that the Administration had reservation on vesting the power on the High Court because the appropriate appointment authority should be one of the highest standing in the Judiciary. The Chief Justice as the head of the Judiciary was considered more appropriate. However, he undertook to consider, in consultation with the Judiciary, the possibility of vesting the power on the Supreme Court.

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6. As regards the Law Society’s power to discipline notaries public, the Chairman asked what kind of disciplinary action would a notary public be subjected to and who would exercise such disciplinary action if he was not a member of the Law Society and had not breached any of its code of practice. Mr Fisher said that the duties of a solicitor related closely to that of a notaries public in Hong Kong. He therefore could not envisage a case in which the Law Society could not discipline a notary public for professional misconduct according to the Solicitors Guide of Professional Conduct. The Chairman maintained that conceptually, a lacuna could arise. Mr Fisher pointed out that proposed section 42 empowered the Chief Justice to suspend and to remove a notaries public from registration upon application. Mr TANG supplemented that almost all notaries public were members of the Law Society which should therefore be able to enforce disciplinary action if necessary.

7. Mr Ambrose LAU referred to the proposed section 42 and asked whether there was any intention to stipulate in the legislation about who could make the application to the Chief Justice for removal from registration and suspension of notaries public. Mr Fisher responded that an application had to comply with the form and manner as prescribed by the Chief Justice under the proposed section 43A. He remarked that it might not be necessary to specify who could make the application. He envisaged that application would normally be made by the notaries public themselves, the Law Society or other professional bodies. The Chairman held the view that the provision was necessary in order to protect the right of the general public to make such an application. The Administration was therefore asked to consider including in the Bill provisions about (a) who could make the application and (b) under what circumstances he could make such application. In response to Mr LAU’s further enquiry, Mr Fisher undertook to find out what was the drafting model for the present Bill.

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New provisions for Chief Justice to make rules for disciplinary procedures

Disciplinary procedures in other Commonwealth jurisdictions

(LegCo Paper No. CB(2) 1338/95-96)

8. Mr Ambrose LAU remarked that the causes and criteria for the Chief Justice to approve an application under proposed section 42 should be stipulated in the principal legislation as the Singapore’s Notaries Public Act had done. Mr Fisher responded that the circumstances prescribed in section 5 of the Singapore’s Act for the Attorney-General to revoke the appointment of a notary public might be too narrow and lacked flexibility.

9. Mr TANG then said that the Administration would consider adding a new provision in the Bill to empower the Chief Justice to make rules on disciplinary procedures by way of subsidiary legislation. In response to the Chairman’s enquiry, Mr Fisher said that the relevant provisions in the U.K. only provided relatively simple disciplinary procedures. He undertook to provide a copy of the U.K. legislation or rules of which set out the power to discipline a notary public for members’ reference.

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10. Mr Fisher then suggested to the meeting that making of such rules on disciplinary procedures would not be included in the present legislative exercise on the grounds that it would take some time and might delay the enactment of the Bill. Mr TANG added that it would allow more time for the Judiciary to consider the disciplinary rules as well as to prepare for the examination procedures. He stressed that it was important for the Bill to be enacted as early as possible to enable a local system of notaries public to be in place before 1997. In response to the Chairman’s enquiry, Mr Fisher said that the Judiciary was studying the matter of rules and had made no decision on which model to follow. As regards the timeframe for enacting subsidiary legislation to make rules for disciplining notaries public, Mr Fisher pointed out that it was not a matter of urgency in the light that no disciplinary action had ever been initiated against notaries public in the past. However, the Chairman urged and Mr Fisher agreed to liaise with the Judiciary and revert to members about the estimated timeframe for deciding such rules at a future meeting.

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11. Mr Ambrose LAU asked whether the criteria for invoking disciplinary action could be stipulated by way of subsidiary legislation. Mr TANG confirmed that legal advice had been sought which confirmed that it was in order to make rules on disciplinary procedures by way of subsidiary legislation. In this regard, the Chairman made the point that jurisdiction was not the same as procedure, and queried whether it was appropriate to prescribe in relation to the proposed section 42 that the circumstances or criteria for the Chief Justice to invoke his powers would be made by subsidiary legislation, particularly when the Chief Justice was to propose such circumstances or criteria himself. In response to the Chairman’s query, the Assistant Legal Adviser pointed out that it was legally and technically in order for those circumstances or criteria to be stipulated either in the principal Ordinance or in the subsidiary legislation. However, in the latter case, the scope of powers purported to be given to a body to make subsidiary legislation had to be clearly spelt out in the principal Ordinance. He remarked that it was ultimately a matter of legislative policy for members to decide whether to accept the placing of the criteria in the principal Ordinance or in subsidiary legislation.

12. To facilitate members’ further consideration of the issue, the Chairman asked the Administration : (a) to prepare the draft new provision to prescribe under what circumstances and based on what reasons, facts and criteria could the Chief Justice approve an application for revoking or re-instating the appointment of a notary; and (b) to explain whether there would be provisions in the Bill to cover these aspects specifically or would there be an empowering provision for the Chief Justice to make relevant rules and in the latter circumstances, how would the Chief Justice make the rules. As regards the basis and circumstances for disciplinary action, Mr Ronald Arculli suggested and the Chairman agreed that the Administration should discuss the matter with the HKSN.

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Draft regulatory framework of the Hong Kong Society of Notaries (HKSN)

(LegCo Paper No. CB(2) 1333/95-96)

13. Members noted the letter dated 16 May 1996 from the HKSN which proposed a regulatory framework for notaries public. The Administration undertook to respond at a future meeting.

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Internal discussion

14. At the Chairman’s suggestion, members agreed that views of HKSN should be sought about (a) whether a complaints procedure against the notaries public should be set up and be specified in the legislation; (b) whether the basis for disciplinary action should be spelt out in the code of practice of the profession, or by way of subsidiary legislation; and (c) the justification for a statutory provision for mandatory membership in the light that such provision did not exist in other Commonwealth jurisdictions. Members further agreed that its representatives should be invited to attend the next meeting.

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Date of next meeting

15. The next meeting would be held on Friday, 7 June 1996 at 8:30 a.m. to continue discussion with the Administration and to meet with the HKSN.

16. The meeting ended at 3:50 p.m..

LegCo Secretariat
4 June 1996