LegCo Paper No.CB(2)2721/96-97
(These minutes have been seen
by the Administration and cleared
with the Chairman)
Ref : CB2/BC/23/95

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

held on Monday, 26 May 1997 at 11:00 am in Conference Room B of the Legislative Council Building

Members Present :

    Hon Margaret NG (Chairman)
    Hon Ronald ARCULLI, OBE, JP
    Hon Bruce LIU Sing-lee

Members Absent :

    Hon Mrs Miriam LAU Kin-yee, OBE, JP
    Hon Albert HO Chun-yan
    Hon IP Kwok-him
    Hon Ambrose LAU Hon-chuen, JP

Public Officers Attending :

    Mr Paul TANG
    Deputy Director of Administration

    Mr J F ABBOTT
    Senior Assistant Law Draftsman

    M0iss Cecilia YEN
    Assistant Director of Administration

Clerk in Attendance :

    Ms Doris CHAN
    Chief Assistant Secretary (2) 3

Staff in Attendance :

    Mr LEE Yu-sung
    Senior Assistant Legal Adviser

    Miss Flora TAI
    Senior Assistant Secretary (2) 3

I. Meeting with the Administration

The Administration’s proposal to add section 43B to the Bill

Members noted the letter dated 15 May 1997 from the Director of Administration to the Chairman of the House Committee. At the invitation of the Chairman, Mr Paul TANG briefed members on the proposal the Administration had put forward to the Hong Kong Society of Notaries (the Society), as set out in the letter dated 22 May 1997 from the Director of Administration, which had been issued vide LegCo Paper No. CB(2) 2418/96-97. With reference to Sir John OWEN’s remark that " as a Master of the Faculty Office, he had not insisted on membership of any local notarial society although he valued the advice from such societies ", Mr Ronald ARCULLI asked and Mr TANG explained that it was only a general comment as far as notarial societies in England were concerned. Mr ARCULLI opined that reference to membership requirement of notaries in the United Kingdom might not be relevant as the machinery was different in the light that the Master of Faculty was the body responsible for disciplining notaries public there. In response to the Chairman, Mr TANG confirmed that Sir John OWEN had not given his view on whether there should be mandatory membership of the Society in Hong Kong. In this connection, members also noted the letters dated 24 May 1997 from the Society to the Bills Committee and to the Secretary of Justice (Designate) respectively (issued vide LegCo Paper No. CB(2) 2439/96-97). The Society considered the proposed section 43B as a step in the right direction but maintained that mandatory membership of the Society was essential to maintain professional standard. The Chairman remarked that although opinion of the Society would be valued highly, the Bills Committee and ultimately the LegCo would decide on the matter independently.

2. The Chairman then asked what was the purpose for the Administration to propose a new clause to add section 43B to the Bill. Mr TANG responded that the proposal meant to give more recognition to the Society in order to re-assure that the notarial standard in Hong Kong would not be impaired; whereas the ultimate disciplinary power still rested with the Chief Justice. He reiterated that the Government could not accept a legal requirement that every notary public should be a member of the Society for both legal and policy reasons. In response to the Chairman’s enquiry, Mr TANG explained that it would be up to the Chief Justice to decide how he would put in place the consultation mechanism with the Society having regard to the requirement of proposed section 43B.

3. The Chairman recapitulated that the Bills Committee had agreed that the role of the Society should be recognized in the proposed regulatory framework in the Bill and that mandatory membership of the Society should be included in the Bill as it was essential to maintain notarial standard in Hong Kong. The Chairman therefore asked and Mr TANG responded that the Administration would need to consider whether it would proceed with proposed section 43B if the Bills Committee still insisted on mandatory membership of the Society. Adm

Mr Ronald ARCULLI’s proposal to add subsection (d) to proposed section 43B

4. To bridge the difference between the Administration’s stance that mandatory membership might contravene the International Convenant on Civil and Political Rights and the Society’s demand that every notary public should be required to be a member of the Society, Mr ARCULLI suggested members to consider adding a subsection (d) to proposed section 43B to the effect that the Chief Justice might pass over the issue of discipline of notaries to the Society and could make rules in relation to membership of the Society if he considered appropriate. In this regard, Mr ARCULLI asked and Mr J F ABBOTT confirmed that his proposal was conceptually workable and it was technically feasible. However, it would be an unusual provision to have the delegation of disciplinary power in this manner. Mr Bruce LIU agreed that Mr ARCULLI’s proposal was worth pursuing to break the deadlock. The Chairman remarked that although she preferred to stipulate mandatory membership in the legislation, the proposal had its merit in the sense that when considering the role of the Society, members could not equate the Society with the Hong Kong Bar Association and the Law Society of Hong Kong because they had different paces of historical development. If the Bill could allow room for the development of the Society by recognition of its role, the Society might acquire the same status as these two legal regulatory bodies in the future and thus mandatory membership could be justified as a matter of course.

5.The Chairman then invited the Administration’s view on Mr ARCULLI’s proposal. As a preliminary response, Mr TANG pointed out that proposed section 43B had already provided room for future development in respect of notary public. Mr ARCULLI was of the view that: (a) his proposal might be able to put the mind of the Society as well as that of members at ease; and (b) it was an enabling provision to allow Chief Justice and the Society to decide on the matter at an appropriate time in the future. However, Mr TANG expressed concern that Mr ARCULLI’s proposal might not tie in with the Bill in the light that: (a) the Bill had already provided for the Chief to set up an enquiry panel; and (b) a CSA to be proposed by the Bills Committee would provide for a representative of the Society to be included in the enquiry panel. Mr ARCCULI argued that the enquiry panel would only be set up on a case-by-case basis.

6. Mr TANG then proposed to provide for the Chief Justice to look into the desirability of mandatory membership of the Society in the future in the legislation as an alternative for members to consider but he stressed that such a suggestion would need to be discussed with the Judiciary. The Chairman pointed out that the difference between Mr TANG’s proposal and Mr ARCULLI’s proposal was only a matter of degree which was not substantial. However, Mr TANG remarked that Mr ARCULLI’s proposal seemed to imply that mandatory membership was a matter of time. After discussion, the Chairman asked and Mr TANG undertook to consult with the Judiciary and revert to members on the Administration’s position. In this connection, Mr TANG stressed that the bottom line for the Administration was that no notary public would be penalized, according to the Bill, for not being a member of the Society. If Mr ARCULLI’s proposal was acceptable to the Administration, the Chairman asked and Mr TANG agreed to re-consider the Administration’s stance on the inclusion of a fine as a disciplinary sanction against a notary public and the representation of the Society in the enquiry panel. Adm

Adm

Consequences if the Bill was not enacted by 1 July 1997

7. Mr Bruce LIU remarked that he appreciated that it was difficult for the Administration, as an executive machinery, to introduce legislation which in its own legal advice would contravene the right to freedom of association protected by Article 22 of the ICCPR. He therefore requested the Administration not to withdraw the Bill if the Bills Committee was to introduce a CSA for mandatory membership of the Society. In response, Mr TANG explained that the Administration found mandatory membership of the Society unacceptable on both legal and policy grounds. It was also considered not necessary because the Society had no statutory regulatory power over notaries public. As it was a Government Bill, the Administration had great difficulty in allowing such a Bill to enter into the statute book even though the CSA did not come from the Administration. He stressed that the Administration had the responsibility to ensure that all the laws enacted in Hong Kong would not raise any legal doubt.

8. The Chairman then asked what would be the consequences if Part IV (Notaries Public) of the Legal Practitioners Ordinance would remain in force and the Bill was not enacted by 1 July 1997. Mr TANG responded that the consequences would be two-fold namely: (a) there would not be any new admission of notaries public because the Judiciary could not proceed with the local examination until the legislation was in place; and (b) regulation of notaries public had to rely on the Legal Practitioners Ordinance (Cap. 159) (the Ordinance), the common law and international custom and practice. As regards the regulation of notaries public, Mr TANG further explained that: (a) no reference had been made to the Archbishop of Canterbury in the Ordinance and the existing appointment system was basically administrative in nature only; and (b) provisions of the Ordinance had already empowered the court to strike off the register of notaries public or suspend from practice any notary public upon reasonable cause being shown. Mr ABBOTT added that the basic power had already existed in section 42 of the Ordinance for the court to discipline notaries public which could be supplemented by rules if necessary. However, the Chairman was concerned that apart from having no new recruit until the enactment of the Bill, there would be an unsatisfactory system of regulation over notaries public.

II. Date of next meeting

9. Members agreed to schedule another meeting for Thursday, 29 May 1997 at 8:30 am to discuss the Administration’s stance and the way forward.

(Post-meeting note : At the request of the Administration and with the concurrence of the Chairman, the next meeting had been subsequently re-scheduled for Thursday, 5 June 1997 at 12:00 noon. However, it was called off until further notice due to a lack of quorum.)

10. There being no other business, the meeting ended at 12:05 pm.

LegCo Secretariat

17 June 1997

Last Updated on 10 December 1998