LegCo Paper No.CB(2) 147/96-97
(These minutes have been
seen by the Administration)
Ref : CB2/BC/23/95

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

held on Wednesday, 25 September 1996 at 2:30 p.m.in Conference Room B of the Legislative Council Building

Members Present:
    Hon Margaret NG (Chairman)
    Hon Ronald ARCULLI, OBE, JP
    Hon Mrs Miriam LAU Kin-yee, OBE, JP
    Hon IP Kwok-him
    Hon Ambrose LAU Hon-chuen, JP
Member Attending:
    Hon Mrs Elizabeth WONG, CBE, ISO, JP
Members Absent:
    Hon Albert HO Chun-yan*
    Hon Bruce LIU Sing-lee*

Public Officers Attending:
    Mr Paul TANG
    Deputy Director of Administration
    Mr Stephen FISHER
    Assistant Director of Administration
Staff in Attendance :
    Mr Arthur CHEUNG
    Assistant Legal Adviser 5
    Mrs Betty LEUNG
    Clerk to the Bills Committee
    Chief Assistant Secretary (2) 3
    Miss Flora TAI
    Senior Assistant Secretary (2) 3

I. Confirmation of the minutes of the last meeting

The draft minutes of the sixth meeting held on 4 September 1996 had been issued vide LegCo Paper No. CB(2)2128/95-96 on 20 September 1996. No amendment had been received and the minutes were taken as confirmed.

II. Internal discussion

Statutory provision of mandatory membership

2. In response to the Chairman’s request at the last meeting, the Assistant Legal Adviser had given a legal opinion on the Bill of Rights and its implications on mandatory membership with the Hong Kong Society of Notaries (the Society). The Chairman thanked the Assistant Legal Adviser for his written legal opinion which had been issued vide LegCo Paper No. CB(2)2167/95-96 on 23 September 1996. At her invitation, Assistant Legal Adviser briefed members on the paper. Members noted the various difficulties for mandatory membership with the Society to be compatible with the freedom of association protected under the Article 18 of the Bill of Rights, which were : (a) the Society was not a public law institution; (b) the predominant regulatory role was vested in the Chief Justice and the public function of the Society would be merely advisory; (c) mandatory membership of a similar nature was not a common practice in comparable jurisdictions; and (d) it remained a question of whether mandatory membership was absolutely necessary in the case of the Society.

3. Assistant Legal Adviser explained that although the Hong Kong Bar Association (the Bar) and the Law Society of Hong Kong (the Law Society) were private bodies (not public law institutions), mandatory membership was justifiable because their public functions as prescribed in the Legal Practitioners Ordinance (Cap. 159) were predominant. He supplemented that the Council of the Law Society of Hong Kong had the statutory power to make rules on the professional practice, conduct and discipline of solicitors by way of subsidiary legislation and such power had not been conferred on the Society. He further explained that the provisions of Article 18 were the same as Article 11(1) and (2) of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms. He then made reference to two court cases of the European Court of Human Rights in relation to Article 11 and concluded that the right not to associate should also be protected even though it had not been specified in the provisions. In this connection, he cautioned that some judges had a different interpretation by following the provisions strictly. He also informed members that there was clear authority that the right to freedom of association offered protection only in respect of private associations but not public institutions.

4. The Chairman asked and Assistant Legal Adviser responded that defining the composition of the enquiry panel in the Bill to include members of the Society might not be sufficient to justify a statutory provision of mandatory membership in the Society. Mr Ambrose LAU further asked and Assistant Legal Adviser pointed out that the Legal Practitioners Ordinance (Cap. 159) had required the Bar to play a predominant role in the disciplinary investigation against barristers. However, he agreed that the degree of predominance would be a matter of judgement, having regard to the overall regulatory system of the relevant profession.

5. The Chairman drew members’ attention to the fact that the Bar and the Law Society had taken the view that mandatory membership in the Society would be desirable in the public interest and did not necessarily infringe the right to freedom of association protected by the Bill of Rights (letters dated 5 March 1996 and 21 May 1996 from the Bar and letter dated 30 May 1996 from the Law Society referred which had been issued vide LegCo Paper Nos. PL1102/95-96 and CB(2)1448/95-96). Mr Ronald ARCULLI also reminded that the Chief Justice had agreed with mandatory membership proposed by the Society in his letter dated 7 October 1995 (issued vide LegCo Paper No. PL1102/95-96). In this regard, Mrs Miriam LAU expressed concern that desirability of mandatory membership might not be sufficient to make such statutory provision necessary in accordance with the legal opinion given by the Assistant Legal Adviser. However, Mr ARCULLI opined that it should be flexible in considering whether all the requirements to justify mandatory membership had been fulfilled in the light that such a provision would be beneficial to the development of the profession. Mr Ambrose LAU stressed that public interest should be considered in the light of whether there was a need for the Society in the regulatory framework of notaries public. Mr IP Kwok-him also said that it might be worth considering to strengthen the status of the Society on two counts : to recognise its active advisory role in the past 20 years; and to avoid vesting all the powers on one person, i.e. the Chief Justice. Mrs Elizabeth WONG opined that it would be in the interest of the consumers to have mandatory membership in the Society in order to ensure the professional standard of notarial work. The Chairman and Mr LAU also shared the view. After detailed discussion, the Bills Committee held the view that the public function of the Society and the public interest element of the case could overcome the various difficulties identified for mandatory membership and decided to support the proposal of a statutory provision of mandatory membership with the Society.

Composition of the enquiry panel

6. As regards the Society’s proposal to define the composition of the enquiry panel to include members of the Society, the Bills Committee recommended that the principal legislation should specify that at least one member of the Society be included in the enquiry panel and the exact number should be determined by the Chief Justice by way of subsidiary legislation.

III. Meeting with the Administration

7. The Chairman informed the Administration of the Bills Committee’s recommendations reached in para. 5 and para. 6 above. Notwithstanding the Administration’s stance already known to members on the issues, the Chairman urged the Administration to reconsider the Bills Committee’s views favourably, if possible.

Submission of the Hong Kong Society of Notaries

8. Members had asked the Administration at the last meeting to reconsider the three proposals put forward by the Society, made in its submission dated 4 September 1996 and modified orally at that meeting. Mr Paul TANG then briefed members on the Administration’s views as set out in the letter dated 12 September 1996 from the Director of Administration (issued vide LegCo Paper No. CB(2) 2100/95-96). Members noted that the Administration was prepared to move a Committee Stage amendment in respect of proposed section 40(A)(1)(b)(iii) to stipulate that the Chief Justice might also notify the Society and invite its comment on the application for admission to an examination. As regards the other two proposals regarding composition of the enquiry panel and mandatory membership, the Administration’s stance remained the same.

Committee Stage amendments (CSAs)

9. The Chairman took members through the latest draft CSAs prepared by the Administration attached to the letter dated 30 August 1996 issued vide LegCo Paper No. CB(2) 2043/95-96. Mr Paul TANG reminded members that the proposed section 40(A)(1)(b)(iii) would be replaced by the proposed amendment in page two of the letter dated 12 September 1996 from the Director of Administration.

10. Mr Stephen FISHER explained that proposed section 42(1) had been redrafted in response to a member’s suggestion to set out a list of conditions for taking disciplinary action against a notary public and then a list of disciplinary powers for the Chief Justice to take appropriate disciplinary action, having regard to the seriousness of the misconduct. He said that the former list was mainly based on the Notaries Public Act (Cap. 208) of Singapore, the Code of Conduct for the Bar of England and Wales and the UK Public Notaries (Conduct and Discipline) Rules 1993. At members’ request, Mr FISHER agreed to review the concept as well as the drafting of the sentence "has become bankrupt or has made an arrangement with his creditors" in new proposed section 42(1)(a)(i) in the light of the Bankruptcy (Amendment) Bill 1996 and the existing provision for practising barristers and solicitors. Mr Ronald ARCULLI then queried whether the scope of proposed section 42(1)(a)(iii) was sufficiently broad to cover all misbehaviour of notaries public. Mr FISHER pointed out that the section was a catch-all phrase and would enable the enquiry panel to decide whether an act was a misbehaviour. He pointed out also that the inquiry panel would compose of members of the relevant legal professions. The Chairman and Mrs Miriam LAU agreed with the provision as it was drafted. Mr ARCULLI said he would need to consider the matter further and would refer to the existing provisions for practising barristers and solicitors.

11. Mr Ronald ARCULLI asked whether "unsound mind" should be included in new proposed section 42(1)(a). Mr Stephen FISHER responded that the purpose of the enquiry panel was to investigate a complaint against a notary public. Unless the notary public concerned had performed an act of misconduct, no disciplinary action should be taken against him simply on the basis of his unsound mind. Mr Paul TANG added that it was very likely that an act of a notary public that would manifest his unsound mind could be caught by the proposed section 42(1)(a)(iii). Mr ARCULLI was concerned that a notary public with unsound mind could not be suspended so long as he did not perform any notarial work. However, Mrs Miriam LAU opined that no disciplinary action should be taken if the notary public was not practising. In this connection, Mr TANG reminded that there was no requirement of a practising certificate in the system of notarial work. The Chairman suggested and the Administration agreed to consider (a) whether "unsound mind" should be included; and (b) whether subsection (iii) would be sufficient to cover such circumstance. She also asked the Assistant Legal Adviser to study whether "unsound mind" would constitute a condition against barristers and solicitors. At her suggestion, the Clerk was also asked to consult the Society on this matter.Adm
Mr Ronald ARCULLI

12. Mr Ronald ARCULLI took the view that there should be a provision for fines up to a certain limit to 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). He cautioned that possible damage caused by notarised document might not be limited to that of the complainant directly dealing with the notary public. A provision for fine could offer the Chief Justice alternative sanction apart from suspension from the Register of Notaries Public. Members also noted that the Barristers Disciplinary Tribunal and the Solicitors Disciplinary Tribunal might order the barrister/solicitor to pay a penalty not exceeding $500,000 which would be paid into the general revenue on completion of its inquiry. Mrs Miriam LAU held a different view on the grounds that (a) it was important to restore the complainant against his loss and yet imposition of fine would not be beneficial to him (as it would be paid into the general revenue); (b) the disciplinary sanctions as prescribed should have the necessary deterrent effect against any misconduct of notaries public, bearing in mind the nature of notarial work ; (c) the Archbishop of Canterbury did not have such power to impose fine; and (d) there was no such provision in the Notaries Public Act (Cap. 208) of Singapore. In response to the Chairman’s enquiry, Mr Stephen FISHER said that unlike the Barristers Disciplinary Tribunal and the Solicitors Disciplinary Tribunal, the Chief Justice might not be in the best position to judge the case and impose a fine. However, the Administration was prepared to consider the matter further. At Mr ARCULLI’s request, the Chairman asked the Clerk to invite written opinion from the Society as to whether the Chief Justice should be empowered to impose fine on notaries public. Adm
ALA5
Clerk

13. With reference to proposed section 42(6)(a) regarding the composition of the enquiry panel, the Chairman reminded the meeting that the Bills Committee would consider moving a CSA to the section such that the Chief Justice might appoint a panel which should include at least one member of the Society to make enquiries on his behalf. The Chairman also reminded the meeting that the Bill Committee would consider moving a CSA to specify the mandatory membership of the Society. The Assistant Legal Adviser undertook to prepare the drafting.Clerk

14. The Assistant Legal Adviser asked and Mr Stephen FISHER confirmed that the Administration would move a CSA for authentic Chinese text of the Bill in the light that authentic Chinese text of the Legal Practitioners Ordinance (Cap. 159) had been gazetted.ALA5

IV. Date of next meeting

15. The next meeting would be held on Friday, 4 October 1996 at 9:00 a.m. to conclude deliberations with the Administration.Adm

16. The meeting ended at 4:30 p.m..

LegCo Secretariat
4 October 1996

* --other commitments

Last Updated on 10 December 1998