LegCo Panel on
Administration of Justice and Legal Services

Action
Column

I. Confirmation of Notes of Previous Meeting and Matters Arising

The notes of meeting held jointly with the LegCo Panel on Security on 29 January 1996 (issued vide LegCo Paper No. PL 1122/95-96) were confirmed without amendment.

2. Members noted that the Chairman had written to the Attorney General about the Panel’s views on the policy on briefing out as reached at the last meeting on 11 March 1996, and that the Attorney General had given a reply on the matter vide his letter dated 29 March 1996. (The letter was tabled at the meeting and subsequently issued to Members not present vide LegCo Paper No. CB(2) 959/95-96.) It was then agreed that the Panel should seek comments from the Hong Kong Bar Association and the Law Society of Hong Kong on the reply of the Attorney General before it made a decision as to pursue or not to pursue the matter further.

Clerk

3. On the item of Appointment of Recorders of the High Court discussed at the last meeting, Members noted the additional information provided by the Judiciary Administrator’s Office (issued vide LegCo Paper No. PL 1114/95-96). Ms Emily LAU suggested and Members agreed that the Judiciary Administrator should be asked to explain why only 3 Recorders were appointed and whether there was any change in situation which had undermined the need for Recordership Scheme in the High Court.

Clerk

II. Date and Items for Discussion at the Next Regular Meeting

4. The next meeting would be held on Monday, 6 May 1996 at 4:30 p.m. to discuss the following :

1. Review of the Small Claims Tribunal;
2. Inspectorate Scheme Operated by the Law Society of Hong Kong; and
3. Proposed Creation of Posts in the Legal Department.

5. With reference to other items, Members agreed that :

1. the Panel would consider the item on "Rules set by Judges in the Conduct of Court Proceedings" at the June meeting;
2. the Panel would consider the item on "Listing Arrangement in the Coroners Court and the Labour Tribunal" at the June meeting.
3. the Bills Committee to study the Legal Practitioners (A) Bill activated on 29 May 1996 should follow up all matters discussed by the Panel on the Bill;
4. the Bills Committee to study the Coroners Bill activated on 29 May 1996 should consider all aspects of the Bill;
5. the Bills Committee to study the Evidence (Amendment) Bill, which likely to activate in May, should consider all aspects of the Bill, including comments received on the Bill;
6. the Panel would not consider the Report entitled "Legal Services in Hong Kong - A Report on the Consultation Exercise and Proposals for the Way Forward" at this stage pending substantive legislative proposals; and
7. the Panel would decide whether matters relating to the Defamation Ordinance should be followed up at the next meeting after Members had perused additional information provided by the Administration, issued vide LegCo Paper No. PL 1079/95-96.

6. Mr Andrew CHENG agreed to prepare an information paper to the Panel to enable Members to consider whether the subject of "composition of Obscene Articles’ Tribunal" should be discussed by the Panel or by the LegCo Panel on Recreation and Culture.

Mr Andrew Cheng

III. Legal Practitioners (Amendment) Bill 1996

(LegCo Paper No. PL 1102/95-96)

7. The following Members declared interest as notaries public: Mrs Miriam LAU, Mr. Albert HO and Mr Ambrose LAU.

8. At the invitation of the Chairman, Mr Peter VINE spoke on behalf of the Hong Kong Society of Notaries (HKSN). He explained the role of notaries public and the role of HKSN, in addition to the submission of HKSN that membership of HKSN should be mandatory for all notaries on the Register. He said that apart from the request of mandatory membership, HKSN was supportive of the Bill. Members also noted that there were at present 384 registered notaries public in Hong Kong.

9. Mr VINE gave the following reasons in support of HKSN’s submission:

1. the Chief Justice would not be placed in a position to investigate the professional conduct of notaries public;
2. the Law Society of Hong Kong was in no position to exercise investigatory power on notaries public; and
3. the statutory requirement of mandatory membership would give HKSN the necessary authority to perform effective and efficient work.

10. The Chairman drew to the attention of the meeting the opinion of the Administration that HKSN was not a regulatory body, nor a disciplinary body and there were no valid grounds to justify compulsory membership. She then invited representatives of HKSN to comment on this opinion. The comments given are summarised below.

11. Mr VINE pointed out that HKSN had a role to play as the Law Society of Hong Kong could not regulate notaries public and as not all members of the Society were practising solicitors even though they had been qualified as such. Ms Elsie LEONG drew reference from the letter dated 20 March 1996 from the Director of Administration to the Chairman of the Hong Kong Bar Association which agreed that compulsory membership did not necessarily infringe the right not to associate but depended on a number of factors. (The letter was then tabled and subsequently issued to absent Members vide LegCo Paper No. CB(2) 959/95-96.) Mandatory membership would give a power to the Society to investigate into unusual and irregular professional conduct of notaries public who then could not avoid investigation by ceasing to be members of the Society and ceasing to pay membership fee. After investigation, HKSN would report to the Chief Justice their findings and it would then be for the Chief Justice to consider whether he would exercise or not exercise his disciplinary power in the case, which could be to the extent of removing the names of such notaries from the Register. She further cited the Hong Kong Social Welfare Personnel Registration Council as example that voluntary membership was not preferred.

12. The Chairman then asked about the existing authority for disciplinary power. Mr VINE said that the power was vested in the Master of Faculties in England. The Society had been assisting him in regulatory and disciplinary matters over notaries in Hong Kong since its formation in 1977.

13. Since the Chief Justice was to take over the rule-making and disciplinary powers over notaries from the Master of the Faculties at the Faculty Office of the Archbishop of Canterbury of England, Mrs Miriam LAU queried why the HKSN could not continue with its role, with voluntary membership. Mr Ronald ARCULLI asked whether mandatory membership existed in other jurisdictions and suggested that the Administration should provide information on other commonwealth countries as to whether their notaries public were governed by the Master of Faculties in England or by their own legislation.

Adm

14. The Legal Adviser (LA) then informed the meeting that under the Legal Practitioners Ordinance it was not obligatory for all barristers admitted in Hong Kong to join the Bar Association of Hong Kong but if they wished to practice in Hong Kong they must hold a practising certificate and pay the membership subscription to the Bar Association. There were similar provisions for solicitors. The Legal Practitioners Ordinance provided all the necessary statutory infrastructure for disciplining barristers and solicitors regardless of whether they were members of the relevant professional body.

15. Mr Albert HO then said that the issue of mandatory membership would require further and more detailed thinking, against the background of the existing regulatory framework of HKSN which included investigative procedures, standards and ethics of membership. He wished to know if HKSN would strengthen its regulatory framework after achieving its goal of statutory provision for mandatory membership. Mr VINE replied that HKSN already had an overhaul of its memorandum of articles which set out powers and ways to upholding high standards. Mr ARCULLI then said that very few professional bodies with statutory recognition would regulate their members through articles of association which could be changed by their members. He was concerned that such articles would not be subject to any statutory scrutiny. Furthermore, a change of the existing practice by adding a statutory provision of mandatory membership might delay the enactment of the Bill. For the continuous operation of a notary system in Hong Kong after 1997, mandatory membership and other more fundamental issues needed further deliberation. Mr Martin LEE said that HKSN should propose an alternative regulatory framework together with its proposal for mandatory membership in the future.

16. Ms Emily LAU agreed with Mr ARCULLI and said that the regulatory framework of HKSN should be subject to the scrutiny of the LegCo for the sake of the public interest. She asked whether HKSN would have any objection to such a proposal. Mr VINE said that barristers and solicitors were different from notaries public in the respect that practising certificate was not required for a notary public to practise.

17. The Chairman then summed up the deliberations of the meeting by saying that in order to add a statutory provision of mandatory membership, HKSN needed a regulatory framework to be overseen by the LegCo in order to achieve the purpose of regulating members. Additional information would also be required as to whether mandatory membership existed in other jurisdictions and whether mandatory membership was really necessary for the existing disciplinary scheme to operate.

18. The Chairman also informed that the Bill would be followed up by the Bills Committee which had been formed to study the Bill. A summary of the foregoing deliberations and the requisite information from the Administration as well as HKSN, if any, would be passed to the Bills Committee for consideration.

IV. Consultation Paper on Extrinsic Materials as an Aid to Statutory Interpretation

(LegCo Paper Nos. PL 920/95-96 and PL 1156/95-96)

19. At the suggestion of the Chairman, Members agreed that LA would present a briefing on the Consultation Paper and highlight points of consideration to Members. The Panel would formulate its views on the matter at its next meeting on 6 May 1996. In the meantime, the Clerk was asked to inform the Law Reform Commission that the Panel was in the process of formulating its views and requested for an extension of the scrutiny time. In this connection, Members noted that the Bar and the Law Society had been asked to inform the Panel of their views on the subject.

Clerk

20. LA then went through his synopsis on the Consultation Paper with Members. The Chairman drew Members’ attention to the judgement of Pepper v Hart which overruled the position that the court should not make reference to any extrinsic materials, particularly Parliamentary materials. Members were asked to consider whether Hong Kong should follow such ruling (in the light that the decision of House of Lords was not strictly binding on the courts in Hong Kong) and whether Parliament was the equivalence of the LegCo. In this regard, LA cautioned that the judgement of Pepper v Hart had been followed in Hong Kong and would likely be applied if LegCo decided not to take any action on the subject.

21. LA asked Members to note an argument against too much reference to extrinsic aids. If reference to Hansard was allowed, legal advisers would be encouraged to search through all the parliamentary proceedings for any possible relevant materials. However, it would not be practical for ordinary cases and particularly for those who did not have the resources to do so.

22. To facilitate Members’ consideration of the Consultation Paper, LA drew Members to three conclusions of the Law Reform Commission which had been re-produced in page 10 of his synopsis. He asked Members to make reference to section 15AB of the Australian Acts Interpretation Act 1901 (as amended) and the draft proposed section 19A to be inserted into the Interpretation and General Clauses Ordinance (Cap. 1) as in the Annex I and Annex II of his synopsis respectively. He also suggested Members to consider the position in New Zealand, for comparison purposes, which had been set out from para. 7.50 to para. 7.75 of the Consultation Paper. He pointed out that the New Zealand Law Commission concluded that rules governing extrinsic aids should not be put on a statutory basis whereas legislative reform had been initiated in Australia prior to the judgement of Pepper v Hart.

V. Staffing Proposal of the Legal Department

(LegCo Paper No. PL 1118/95-96)

23. At the invitation of the Chairman, Mr Peter NGUYEN briefed Members on the staffing proposal. As regards the post of DPCC dealing with commercial crime cases, Mr NGUYEN drew Members’ attention to the steadily rising number of commercial crime cases requiring legal advice and trial (para. 8 of the staffing proposal) as well as that of smuggling and infringement of copyrights activities. For the post of DPCC dealing with Independent Commission Against Corruption, Mr NGUYEN pointed out that the workload arising from ICAC investigation had been increased steadily as well.

24. Mr NGUYEN assured Members that the creation of these two posts would not decrease the number of briefing out cases to the Bar. In fact, it would increase the number of cases being processed and thus would require more cases to be briefed out. He stressed that the main function of these two DPCC posts was not to appear in court but to supervise the increased activities of the respective units and to offer advice.

25. Ms Emily LAU asked how the Legal Department could maintain the percentage of cases briefed out to the private Bar at about 20% per year (as undertaken by the Attorney General in his letter dated 29 March 1996 to the Chairman). Mr NGUYEN responded that there was no active mechanism within the Department. However, figures of briefing out would be assessed at the end of each month. With a number of major on-going cases relating to commercial crimes and ICAC, it was forecasted that the target of 20% would be met at the end of the financial year.

26. Mr IP Kwok-him referred to Enclosure 1 to the staffing proposal and asked whether creation of one post instead of two was possible, with re-deployment of staff in the Department, since the total annual number of cases handled had not been increased tremendously, comparing 1989 with 1995. Mr NGUYEN cautioned that number of cases should not be used as the single criteria. Each DPCC was in charge of a specific area. There was in fact little interchange of counsels from one area to another. Mr Samuel LEUNG supplemented that the proposed new posts were dealing with complicated cases which required personnel of directorate grade and expertise. In this regard, Mr Martin LEE pointed out that the number of trials had to be taken into account which might demand a lot of workload. Members also noted that the percentage of increase over 1989 in 1995, as provided in para. 8 of the staffing proposal, should be +263.8 instead of +163.8.

27. In response to Ms Emily LAU’s enquiry regarding the duty list of the DPCC dealing with commercial crime cases, Mr NGUYEN explained that ICAC would investigate commercial crimes only if there was allegation of corruption.

28. As regards the requirement of timesheet to monitor the workload in the Legal Department, Mr NGUYEN took the view that timesheet might not be very useful in monitoring the workload of counsel within the Department on the grounds that (a) it seemed to imply a mistrust of the professionals; and (b) inaccurate figures could be entered in the timesheet. He explained that every unit was required to provide the following figures at the end of each month which were helpful in monitoring its workload :

1. no. of advice given;
2. no. of trials ;
3. no. of days on court appearance; and
4. no. of cases handled.

29. Mr Samuel LEUNG supplemented that the requirement of timesheet had been instituted a few years ago but in vain due to the negative staff response and the considerable administrative cost involved. In this regard, Ms Emily LAU still queried why timesheet which was required for lawyers in the private sector could not be adopted by the Department.

30. Ms Emily LAU asked about the current delay and how the creation of these two DPCC posts would facilitate the processing of cases. Mr NGUYEN explained that cases might be delayed for one month before advice could be given. The creation of these two posts would facilitate cases to be brought to court expediently.

31. Mrs Miriam LAU further asked how the performance of the Legal Department would be improved with the creation of these two new posts. Mr NGUYEN undertook to provide statistical information after the meeting, on the time required to give an advice before and after the creation of posts and on the no. of cases expected to be handled in time, etc. with the creation of posts. At the suggestion of Ms Emily LAU, Members agreed that the Administration should include these supplementary information in its formal staff proposal to the Establishment Subcommittee.

Adm

VI. Any Other Business

32. The Chairman also drew Members’ attention to a Chinese newspaper article that the present legal and judicial system might not be able to continue after 1997. Members agreed that comment from the Administration should be sought on such article before deciding whether the issue should be taken further.

Clerk

33. The Chairman reminded Members that there would be a joint meeting with LegCo Panel on Security on 22 April 1996 to study the two issues of Cross Border Co-operation on Legal and Judicial Matters and Certificate of No-criminal Conviction.

34. There being no other business, the meeting ended at 7:00 p.m..

LegCo Secretariat
16 April 1996