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

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Meeting with the Administration

Progress of the Bill

Members noted the wish of the Administration to resume Second Reading debate of the Bill in the current session. In response to members’ enquiry about the urgency of the Bill, Mr Paul TANG explained that early enactment of the Bill would allow more lead time for the Judiciary to prepare for course arrangement and examination procedures. Mr Stephen Fisher supplemented that University of Hong Kong had to start recruiting staff in September 1996 in order to conduct the course and to hold qualifying examination for notaries public in Hong Kong early next year. He further said that if the qualifying examination remained to be held in U.K. next year, it might not be possible to settle all appeal cases arising from the examination before 1 July 1997.

2. After discussion, members held it optimistic for the Bill to resume its Second Reading debate at the last sitting of the current LegCo session, although members would endeavour to conclude their deliberations on it as soon as possible.

Governance of notaries public in Singapore

(LegCo Paper No. CB(2) 1574/95-96 issued on 12 June 1996 & LegCo Paper No. CB(2) 1606/95-96 issued on 14 June 1996)

3. Members noted the changes to the governance of notaries public in Singapore as set out in the Administration’s letter dated 10 June 1996.

4. In response to Mr Bruce LIU’s enquiry about the reason for Singapore to transfer the power of appointing notaries public from the Attorney General to the Senate of the Singapore Academy of Law, Mr Fisher remarked that it might be due to the fact that the newly established Singapore Academy of Law had a membership which included legal officers, solicitors, judges and other legal professionals.

5. The Chairman asked for clarification of the term “the disciplinary bodies” as referred to in section 11B(2)(c) of the Singapore Academy of Law Rules. Mr Fisher explained that a complaint about the misconduct of a notary public outside the scope of notarial work would be referred to another appropriate professional body for necessary action.

6. In response to Mrs Miriam LAU’s question about the phrase “or other misconduct” in section 5(c) of the Notarial Public Act, Mr Fisher agreed to check with the Ministry of Law in Singapore as to whether there were other detailed rules or basis to govern the conduct of notaries public.

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Submission of the Hong Kong Society of Notaries

(LegCo Paper No. CB(2) 1551/95-96 issued on 10 June 1996 & LegCo Paper No. CB(2) 1642/95-96 issued on 19 June 1996)

7. Members noted the letter dated 7 June 1996 from the Hong Kong Society of Notaries (HKSN). In this connection, Mr TANG informed the meeting that the Administration had held a further meeting with HKSN on 13 June 1996. The Administration came to the conclusion that (a) HKSN did not appear to object completely to the proposal of the Chief Justice being the ultimate authority for appointing/disciplining notaries public; (b) HKSN would wish to have a useful role to play in assisting the Chief Justice to exercise his authority as well as in the “day-to-day” regulation of notaries public; and (c) HKSN’s proposal (which needed much further thought in view of its wide implications) did not offer a better and more practical framework for appointing and disciplining notaries public than the Administration’s proposal. In this regard, Mr TANG pointed out that there was very little precedent, if any, in other common law jurisdictions for a separate regulatory body to monitor only the notarial work performed by solicitors.

8. Mr Albert HO remarked that the arguments against HKSN to be a regulatory body namely, double jeopardy and the absence of a Code of Conduct for disciplining notaries public, applied to the Administration’s proposal too. In response, Mr TANG cautioned that the Bill only proposed the Chief Justice to replace the Master of Faculties in U.K. for appointing and disciplining notaries public. Chief Justice, as the Master of Faculties, would only act on complaint and would seek appropriate advice from relevant professional bodies before exercising his authority. He also pointed out that the Administration had agreed that the criteria for removing or suspending a notary public would be set out in the principal legislation and the Chief Justice would make disciplinary rules by way of subsidiary legislation.

9. Mrs Miriam LAU asked what would be the role of HKSN in any enquiry panel to be set up by the Chief Justice. Mr TANG explained that the composition of the enquiry panel would comprise legal practitioners (including notaries public), lay members and other judicial officers, and would be detailed in the disciplinary rules. The Chairman asked and Mr TANG confirmed that the Judiciary had been consulted on the workability of such proposal. The Chairman further asked and Mr TANG explained that the enquiry panel would be set up on an ad hoc basis in response to a complaint made.

10. After consideration, members agreed that HKSN should have a participatory role, which should be active and definite, in assisting the Chief Justice to exercise his appointing/disciplining authority. In this regard, the Administration was asked to consider setting out its role in the legislation. Members further agreed that the Administration should consult closely with HKSN in drawing up rules to define such role.

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11. As regards HKSN’s proposal that it should be the regulatory body for notaries public, members agreed with the Administration’s conclusion that it needed further consideration and a decision should not be taken at the present stage.

Removal from registration and suspension of notaries public and restoration

(LegCo Paper No. CB(2) 1642/95-96 issued on 19 June 1996 &
LegCo Paper No. CB(2) 1715/95-96 issued on 26 June 1996)

12. At the invitation of the Chairman, Mr TANG briefed members on the proposed changes to the Bill in response to views expressed at previous meetings as set out in the Administration’s letter dated 19 June 1996.

13. Mr TANG then took members through the draft Committee Stage Amendments (CSAs) as set out in the Administration’s letter dated 26 June 1996. Members raised a number of questions and the Administration responded accordingly. The ensuing deliberation is summarized in paragraphs 14 - 21.

Proposed section 42(1)

14. Members were of the view that the phrases “that it would be appropriate so to do” in proposed section 42(1)(a), “but are not limited to” and “or other serious misconduct” in proposed section 42(1)(b) were too broad and unclear. In this regard, Senior Assistant Legal Adviser (SALA) advised that a policy decision had to be made as to whether (a) the Chief Justice should be given such an absolute discretion, having regard to specified factors or (b) the Chief Justice should only act under certain specified circumstances. The Chairman remarked that the drafting of proposed section 42(1) seemed to give an absolute discretion to the Chief Justice so long as he had considered the specified circumstances. The Chairman further asked and SALA reminded that proposed section 42(1)(a) required the Chief Justice to act where it appeared to him that it would be appropriate to do so. He added that under general principles, the exercise of a statutory authority was subject to judicial review.

15. Mrs Miriam LAU referred to section 5 of the Notaries Public Act of Singapore and remarked that the circumstances for the Attorney General to revoke the appointment of a notary public were very specific. Mr Fisher explained that Chief Justice might need to revoke the appointment of a notary public because of his serious misconduct even before he was found guilty of such misconduct. Mr TANG supplemented that the Attorney General in Singapore also had discretion in revoking the appointment of a notary public. Mr Albert HO asked whether provisions for fines and/or admonishments should be added. Mr Fisher undertook to hold discussion with the Judiciary in view of possible resources implication. Mr HO further enquired and Mr Fisher explained that the word “direct” was used in proposed section 42(1)(a) because the Register of Notaries Public was kept by the Registrar of Supreme Court.

16. In the light of members’ concern that the Chief Justice was given a broad discretion, the Chairman asked and Mr TANG agreed to consider specifying the discretion, along the lines of the relevant provisions of the Singapore’s Notaries Public Act and to redraft the CSAs. However, he advised that section 5(b) of the Act would not be applicable to Hong Kong. Members also noted that the requirement “if it appears to him that the notary public is no longer fit and proper” would be added to proposed section 42(1)(a).

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Proposed section 42(2)

17. The Chairman referred to proposed section 42(2)(a) and queried why a stricter criteria was imposed for the Chief Justice to lift a suspension. She asked the Administration to consider the need to balance the standard used for suspension (where it appears to him having regard to paragraph (b) that it would be appropriate so to do) and that used for removing the suspension (on being satisfied that).

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Proposed section 42(5)

18. The Chairman referred to proposed section 42(5)(a) and queried why the word “shall” was used instead of “may” in subsection (b). Mr TANG explained that some straightforward cases could be cleared up by way of simple enquiries by the Chief Justice without setting up a panel. Therefore, the Chief Justice should be given the discretion as to whether an enquiry panel was required. In this regard, the Chairman asked and Mr TANG responded that the extent of power of the enquiry panel would be defined by way of subsidiary legislation. In response to the Chairman’s enquiry, SALA advised that the extent of power of the Solicitor Disciplinary Tribunal was set out in the principal ordinance. However, it was acceptable to define the extent of power either in the principal ordinance or in subsidiary legislation from a legal point of view, subject to members’ views. Members then asked and the Administration agreed to consider, in consultation with the Judiciary, specifying the extent of power of the enquiry panel in the principal ordinance, and to model on the power of the appropriate panel of the Hong Kong Bar Association and the Law Society of Hong Kong.

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Proposed section 42(4)(ab)

19. The Chairman asked and Mr TANG explained that the word “shall” was used because an application might only be made by or on behalf of the person whose name had been removed.

Proposed section 42(5)

20. Mr Ambrose LAU queried whether the phrase “may in his discretion without further enquiry into the matter accept any such recommendation in whole or in part and may ....” in subsection (c) was appropriate in term of fairness. Mr TANG explained that the procedure of appointing a panel to make enquiries was to assist the Chief Justice in exercising his authority. SALA reminded members that the drafting had already made distinction between the findings and conclusions of the enquiry (subsection (b)) and the recommendations of the enquiry (subsection (c)). The Chief Justice was given the discretion in considering the recommendations of the enquiry. He agreed with the Chairman’s suggestion that the Chief Justice should be required to consider the recommendations in making his decision. The Chief Justice would be required, as a matter of principle, to act according to the rule of natural justice if this had not yet been prescribed in the Bill. Mrs Miriam LAU suggested that the Chief Justice should be given the power to order further enquiry. Members pointed out that it was necessary for the Chief Justice to give reason for not following any recommendation. In the light of views expressed, Mr TANG undertook to consider redrafting of the section.

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Proposed section 43A

21. SALA suggested members to consider whether proposed section 43A(c) would adequately empower the Chief Justice to make rules in connection with any matter specified in section 42. At Mr Bruce LIU’s suggestion, the Chairman asked the Administration to consider listing out specific factors (as set out in the Administration letter dated 19 June 1996) in addition to those listed in proposed section 43A(c).

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22. The Administration was also asked to consider the Chairman’s questions regarding the following provisions in the Bill :

section 40A(1)(a)(ii)

- how to specify “also specified for the time being”?

section 40A(1)(b)(ii)

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- the meaning of “the Chief Justice may, if he thinks fit, allow the application ....?

section 40A(3)(a)

- why “in case” was used ?

- why “Register of Notaries Public” instead of “a register of notaries public” was used ?

section 40B(3) and 40B(5)(b)

- the drafting seemed to be confusing.

section 41

- why the phrases “shall continue”, “all documents relating thereto” and “by appointment” were used ?

section 42(3)(a)

- why the phrase “shall cease to have effect” was used ?

section 42(4)(a)

- why the word “restored” was used ?

section 42(4)(b)

- why the word “revive” was used ?

section 43(2)

- why the phrase “both a notary public and then registered as ... “ was used ?

23. The meeting ended at 10:50 a.m..

LegCo Secretariat
15 July 1996