LegCo Panel on
Administration of Justice and Legal Services

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I. Confirmation of Minutes of Previous Meeting and Matters Arising

The minutes of the last meeting held on 10 June 1996 had been issued to members vide LegCo Paper No. CB(2) 1775/95-96 on 4 July 1996. No amendment was received and the minutes were taken as confirmed.

Appointment of Appeal Court judges

2. Members noted the article written by Dr Nihal Jayawickrama on “Appeal Court judges may leave much to be desired” published on the Hong Kong Standard on 26 June 1996 (issued vide LegCo Paper No. CB(2) 1795/95-96). The Chairman suggested and members agreed that the matter of appointment of Appeal Court judges should be taken up with the Administration. A draft letter to the Administration would be circulated for members’ comments before issuance.

Clerk

II. Rights of Audience

3. Members noted the report on the “Public Opinion Survey on Extension of Solicitors’ Rights of Audience” which had been issued vide LegCo Paper No. CB(2) 1662/95-96. Mr R Allcock explained that the survey was conducted in response to recommendation of the “Consultation Paper on Legal Services” issued in 1995. He stressed that the Administration had not drawn any conclusion on the matter and would like to invite views from the Panel, the Hong Kong Bar Association and the Law Society of Hong Kong.

4. Ms Emily LAU queried about the validity of the survey in the light that there was a general lack of understanding of the present system among interviewees. Mr Allcock responded that the level of understanding varied from person to person and the purpose of the briefing before going through the questionnaire was for the interviewers to explain certain terminology and policies to the interviewee. He supplemented that neither branch of the profession was involved in the design of questionnaire and the method of survey in order to maintain impartiality. However, the Bar’s submission had been referred to the City University of Hong Kong for consideration. In this regard, Mrs E Waller stressed that the proposal to have the survey was endorsed by the Census and Statistics Department and it was conducted by a team of experts who also conducted the public opinion survey in 1995.

5. The Chairman then asked why the Attorney General subsequently decided to reverse his original decision and to conduct the public opinion survey. Mr Allcock explained that the City University of Hong Kong at first had recommended not to include the subject area in the survey conducted in 1995 on the grounds that (a) it would be more appropriate to limit the subject areas because the Consultation Paper contained 40 separate proposals; and (b) this particular subject was more difficult than others for the general public to follow. However, in light of the strong views expressed on the matter subsequently, the Administration decided to pursue the matter. The City University of Hong Kong decided to conduct a pilot study in the first place, which demonstrated that the survey was viable.

6. In response to Mr Martin LEE’s enquiry about the stance of the Administration and Law Society, Mr Allcock said that the Administration was neutral on the matter at present but would make a decision in the near future. If broad support was forthcoming, the Administration would consider moving Committee Stage Amendments (CSA) to the Legal Services Legislation (Miscellaneous Amendments) Bill 1996 (which had already been introduced into the LegCo on 26 June 1996) to extend the rights of audience of solicitors. However, support of the Executive Council would be sought as a matter of policy. Mr LEE then asked and Legal Adviser advised that it was not impossible to introduce CSA to provisions not originally included in the Bill even if new measures were involved. Yet, the ultimate decision as to its relevance to the scope of the Bill was to be made by the President of the LegCo. In this connection, Mr Richard Morris said that the Law Society was anxious to see an extension of solicitors’ rights of audience.

7. At the invitation of the Chairman, Ms Gladys LI drew members’ attention to the letter dated 4 July 1996 from the Bar to individual legislative councillors on “the Attorney General’s Proposal to Extend Full Rights of Audience to Solicitors” (issued vide LegCo Paper No. CB(2) 1798/95-96). Ms Gladys LI informed members that the Bar was exceedingly concerned at the possible negative impact of the proposal on new entrants to the Bar in light of less job security. She maintained that it was too early to draw conclusion from other jurisdictions’ experience. In this connection, Mr Audrey EU drew members’ attention to Table C25 of Volume II of the Report and said that quite a significant number of respondents, i.e. 462 out of 1070, agreed that the barrister profession would be adversely affected if solicitors’ rights of audience were extended.

8. Ms Audrey EU then briefed members on the Bar’s comments on the survey and the information obtained by the Attorney General from other jurisdictions on the state of the Bar as set out in the Bar’s letter. She pointed out that the figure of 78% of the respondents who agreed to extend the rights of audience to conduct litigation in the High Court and the Court of Appeal to some solicitors included those who agreed “depending on situation”, the context of which was not clearly defined. She also quoted some examples in which leading and contradictory questions were asked, and which demonstrated that even the designer of the questionnaire had little knowledge about the legal system.

9. The Chairman then invited comments from the Law Society. Mr Morris responded that since the Law Society had just received the Bar’s letter shortly before the meeting, it would reserve its position for a detailed response. However, Mr Morris remarked that it was not uncommon to detect flaws in a survey. He considered that reference could be drawn from other jurisdictions’ experience for the extension of solicitors’ rights of audience. He further drew members’ attention to a paper on “The State of the Bar in Various Commonwealth Jurisdictions” (which was subsequently issued vide LegCo Paper No. CB(2) 1843/95-96 after the meeting). He quoted the Chairman of the English Bar as saying that he did not believe that the recent reforms in England for solicitors to acquire extended rights of audience had undermined the strength and independence of the English Bar. Mr Morris said that the Law Society also did not believe that the strength and independence of the Hong Kong Bar would be affected by a similar proposal. In response, Ms Emily LAU pointed out that the Chairman of the English Bar was also quoted as saying that it was far too early to say whether the changes had produced clear benefits for consumers of legal services (the Bar’s letter dated 4 July 1996 referred).

10. Ms Emily LAU asked and Mr Morris responded that there would not be less incentive to join the Bar because solicitors and barristers were different branches of the profession. Ms LAU further asked and Mr Morris said that the proposal would not bring down the litigation fee for every case. However, he stressed that it would be in the interest of the client if the solicitor could follow the case through and represent the client in the High Court for certain cases. Mr Christopher CHAN also remarked that consumer’s interest should have priority on the matter.

11. After discussion, Ms Emily LAU and Mr Martin LEE indicated that they would not support the proposal. Ms LAU shared the Bar’s concern that there would be fewer people joining the Bar if the rights of audience of solicitors were extended. Mr LEE also pointed out that it might not be relevant to draw reference from the English Bar in view of the small number of the solicitor advocates who obtained Rights of Audience in England. He queried whether it was in the public interest to initiate such a change in light of the imminent change of sovereignty.

III. Briefing out costs in the Bumiputra Malaysia Finance Limited Case

12. Members noted that the issue was raised with the Attorney General on 31 May 1996 at the request of Hon Emily LAU and that the Attorney General’s Chambers had subsequently replied vide the letter dated 11 July 1996, issued to members vide LegCo Paper No. CB(2) 1597/95-96.

13. Ms Emily LAU referred to para. 6.7.9 of the LegCo Panel’s Report on the Bumiputra Malaysia Finance Limited case published in June 1995 and expressed dissatisfaction that payment was made to Mr Grant’s account without providing the requisite information to the LegCo Panel, and despite the fact that the LegCo Panel had specifically recommended that the Attorney General should not settle the outstanding claim until all due clarifications had been obtained. The Chairman and Mr Martin LEE also shared her concern. Ms LAU was also dissatisfied that the Grey Areas Committee had taken such a length of time to decide on the fees dispute. In response to Ms Emily LAU’s enquiry, Legal Adviser was of the view that the Panel’s course of action to raise the issue with the Administration would not hamper the impending trial between the AGC and Mr Grant. He cautioned that the purpose of the inquiry by the Panel into the Bumiputra Malaysia Finance Limited case was to exercise accountability and the request in the para. 6.7.9 remained outstanding.

14. After discussion, members agreed that the Clerk should write to the Attorney General asking (a) why he made payment to Mr Grant’s account without giving a prior briefing to the Panel; (b) whether he had obtained all clarifications including the basis for brief fee to enable him to make such payment despite the fact that he was still awaiting the deliberations of the Grey Areas Committee; (c) why the Grey Areas Committee had taken such a long time to decide on the fees dispute; and (d) when it would decide.

Clerk

IV. Review of District Court Ordinance

15. Members noted the comments from the Hong Kong Bar Association on the District Court (Amendment) Bill 1996 (issued vide LegCo Paper No. CB(2) 1779/95-96). At the invitation of the Chairman, Mr Stephen Fisher briefed members on the paper entitled “Review of the District Court Ordinance (Cap. 336)” which had been issued vide LegCo Paper No. CB(2) 1598/95-96. The Chairman asked and Mr Fisher confirmed that the two branches of the legal profession were being consulted on the Bill and were sent the latest draft (the fifth draft) for comment.

16. The Chairman then invited Mr Nick Hunsworth to present the views of the Law Society of Hong Kong. In this regard, members noted the Law Society’s submissions on the third and fifth drafts of the Bill which had been issued vide LegCo Paper Nos. CB(2) 1661/95-96 and CB(2) 1731/95-96 respectively.

17. Mr Hunsworth reiterated that the Law Society was firmly of the view that the District Court’s jurisdiction should be increased to $1,000,000 for its general jurisdiction and $2,000,000 for personal injuries cases. He pointed out that the more informal proceeding of District Court assured better expediency and less restriction on representation and therefore cheaper litigation cost. The Law Society therefore disagreed with the Bar’s suggestion to adopt a comprehensive code of civil procedure in the light that it would defeat the advantages. He emphasised the current or even the proposed financial limits of civil jurisdiction for the District Court, i.e., $120,000 and $300,000 respectively were too low for the sandwich class. An extension of its jurisdiction would provide a cheaper, quicker and probably more efficient system of justice for consumers, particularly for those who might not qualify for legal aid.

18. In response to Ms Emily LAU’s enquiry, Mr Hunsworth said that Law Society supported the idea of appointing more District Judges who were experienced and competent in civil matters so that cases could be disposed of quickly.

19. Ms Emily LAU further asked and Mr Fisher responded that the extension of District Court’s jurisdiction, as proposed by the Law Society, would have significant financial implication as a lot more cases would be dealt with at the District Court’s level. In this connection, Miss Sarah WU informed the meeting that (a) about 13,500 civil cases were filed with the High Court in 1995, out of which over 4,000 fell into the range of $120,000 to $750,000; and (b) 16,886 civil cases were filed with the District Court in 1995. Ms LAU expressed concern that the District Court might not be able to cope with the increase in workload arising from the proposed extension of its jurisdiction by the Law Society unless there were additional qualified District Judges.

20. Mr Martin LEE was of the view that there was rationale for limited jurisdictions for the District Court which was well accepted by the Government and legal profession. He therefore asked what was the justification for the proposed jurisdiction of District Court by the Law Society. Mr Hunsworth responded that the proposed increase of the various financial limits of the civil jurisdiction of the District Court was to offset the effect of inflation since these limits were last reviewed eight years ago. The proposed jurisdiction by the Law Society was to take into account of future inflation rate for another eight years’ time. In addition, it was to ensure a lower litigation cost for the consumers. Mr Amirali Nasir added that recent upward revision of employees compensation amount should be considered. He reminded that the gross claim could be as high as $1.8 million. Mrs Miriam LAU asked and Mr Fisher responded that apart from inflation adjustment, the Administration had examined the possibility of increasing the District Court’s jurisdiction having regard to the resources implication on the Judiciary, the complexity of cases and the competency of District Court. Mr Martin LEE further asked whether the financial limits within the jurisdiction of District Court could be reviewed bi-annually. In this regard, Legal Adviser advised that the Employees Compensation Ordinance was amended in 1981 to allow for alteration of the financial jurisdiction by resolution of the LegCo.

21. Mr Albert HO asked and Miss WU responded that the new financial limit of $600,000 for personal injuries cases was reasonable in view of the fact that the net claim of about 50% of 1,200 personal injuries cases filed in 1995 was below $600,000.

22. After discussion, the Chairman suggested and members agreed that the Administration should (a) respond in writing to the suggestions in the submissions from the Bar and the Law Society and (b) provide background as to the practical consequences of various changes of jurisdictional limits, when the Bill was introduced to LegCo in the next session.

Adm

V. Any Other Business

23. Members agreed that no meeting would be scheduled during the summer recess. However, the Clerk would inform members if there was any urgent issue which needed attention.

24. Since it was the last Panel meeting the Legal Adviser was attending, the Chairman, on behalf of the Panel, thanked him for his very useful contribution to the discussions of the Panel. The Chairman also thanked the Clerk for her service to the Panel.

25. There being no other business, the meeting ended at 6:45 p.m..

LegCo Secretariat
20 July 1996