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I.Resignation of Hon LO Suk-ching from the Panel

Members noted that Hon LO Suk-ching had tendered his resignation from the Panel.

II.Confirmation of Minutes of Previous Meetings and Matters Arising

2. The minutes of meetings held on 11 March and 1 April 1996 had been issued to Members vide LegCo Paper Nos. CB(1) 1284/95-96 and CB(2) 1174/95-96 respectively. No amendment was received and the minutes were taken as confirmed.

3. Members noted the comments of the Hong Kong Bar Association (issued vide LegCo Paper No. CB(2) 1114/95-96) on the Administration's stance on "briefing out".

4. Members noted the Attorney General's stance as given in his reply dated 22 April 1996, in response to an article from the Hong Kong Economic Times, about the continuation of the legal and judicial systems after 1997, which had been issued vide LegCo Paper No. CB(2) 1113/95-96. Members also noted that the Legal Adviser (LA) was being asked to interpret the relevant provisions in the Sino-British Joint Declaration and the Basic Law.

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

5. The next meeting would be held on Monday, 10 June 1996 at 4:30 p.m. to discuss the following items :

(a) Listing arrangement in the Coroners Court and the Labour Tribunal;

(b) Progress of formation of the Court of Final Appeal; and

(c) Continuation of legal and judicial systems after 1997.

6. Members agreed that the item of "Rules set by judges in the conduct of court proceedings", as proposed by Mr Albert HO, should be deferred to the July meeting for discussion. The Chairman suggested that Mr HO could prepare an information note on the subject and the Bar could also be invited to comment on the subject matter.

Mr Albert HO
Clerk

7. Members agreed that the Panel should not pursue with matters relating to the Defamation Ordinance at present.

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

(Relevant papers :

- Consultation Paper issued by the Law Reform Commission of Hong Kong (LRC) in February 1996

- Legal Adviser's Synopsis on the Consultation Paper issued vide LegCo Paper No. PL 1156/95-96

- Views of the Law Society of Hong Kong on the Consultation Paper issued vide LegCo Paper No. CB(2) 1188/95-96

- The Hong Kong Bar Association's views issued vide LegCo Paper No. CB(2) 1209/95-96)

8. Members noted the comments made by the Bar and the Law Society. As regards the Bar's submission that it was inappropriate to implement recommendations of the LRC at a time of constitutional change, Mrs Miriam LAU suggested and members agreed that the Clerk should write to the Bar to clarify whether it supported such recommendations and to seek any views that it might have when it had further studied the Consultation Paper. The Chairman remarked that it would require a longer time before a view could be taken on the recommendations of the Consultation Paper as Pepper v Hart was only a 1992 court ruling and the development following the case had yet to be observed.

Clerk

9. Ms Emily LAU asked and LA responded that the Consultation Paper was a careful balance on the crucial question as to whether the rules governing extrinsic aids should be put in a statutory form or whether the court should be left to continue its current application of such rules. LA remarked that the Bar's submission demonstrated a confidence in the sensible application by the court of the rules governing extrinsic aids. However, the Law Society supported the stance in the Consultation Paper which tended to favour legislation. In this regard, Ms LAU expressed her agreement with the Bar's view on the grounds that there was no pressing need for such a legislative reform in light of the heavy legal and judicial agenda during the short period before transfer of sovereignty.

10. Mr Albert HO held a different view, saying that it would be more appropriate to implement necessary legislative reform as early as possible. He asked whether such legislative reform before 1997 might affect interpretation of the Basic Law. LA pointed out that the proposals in the Consultation Paper were dealing with interpretation of domestic legislation only. Mr HO further asked and LA responded that the Interpretation and General Clauses Ordinance did make reference to constitutional documents. However, LA drew members' attention to the phrase "in the interpretation of a provision of an Ordinance" in the proposed legislation in the Consultation Paper. LA advised that the definition of "Ordinance" did not include the Basic Law or any other constitutional documents. In addition, LA considered that reference to constitutional change in the Bar's submission was not about interpretation of the Basic Law but about the future position of legislative procedures after 1997. At Mr Martin LEE's suggestion, the Chairman asked the Clerk to clarify with the Bar the meaning of "what changes to the legislative process might take place over the next few years"

Clerk

11. Ms Emily LAU was of the view that in light of the limited timeframe and the Panel's heavy agenda, it might not be feasible for the Panel to thoroughly discuss the matter and to formulate its stance. Mr IP Kwok-him shared the view. He opined that there were many channels for reflecting view to the LRC. After consideration, members agreed that the matter was worth further consideration. Given the short timeframe, members did not wish to draw any conclusion as to whether legislative reform was desirable. However, further opportunity to discuss the matter with the legal profession was welcomed. Members might convey their views if any, either individually or through the Panel, to the LRC.

V.Inspectorate Scheme Operated by the Law Society of Hong Kong

(Relevant papers :

- Information note prepared by the Attorney General's Chambers issued vide LegCo Paper No. CB(2) 1186/95-96

- Law Society's Report on Inspectors Powers issued vide LegCo Paper No. CB(2) 1227/95-96

- Letter from the Law Society to Attorney General issued LegCo Paper No. CB(2) 1235/95-96)

12. At the suggestion of the Chairman, members agreed that Ms Gladys LI, Chairman of the Bar, should join the meeting for this agenda item, together with representatives of the Law Society and the Administration.

13. At the Chairman's invitation, Mr Roderick WOO briefed members on the Report on the Inspectorate Scheme operated by the Law Society.

14. Mr WOO referred to para. 7 of the information note of the Attorney General's Chambers which set out the Administration's intention to introduce legislation to criminalize touting and commission-taking activities if the legal profession failed to eradicate the problem by self-regulation. He said that he understood that the Attorney General had expressed his willingness to work with the Law Society, the Bar and the Independent Commission Against Corruption (ICAC) to devise a means to combat touting and commission-taking activities at the Joint Working Party on Touting and Commission-taking's meeting held on 2 May 1996.

15. In response, Mr E Waller explained that it had always been the stance of the Administration that the option of criminalization should not be ruled out notwithstanding that the legal profession had been given the opportunity to combat touting and commission-taking by self-regulatory measures. The Administration was committed to provide a sound legal framework for the legal profession to regulate itself. The Administration had asked the ICAC to compile an assessment report as to whether the problem of touting and commission-taking had been contained. This report was expected to be completed in three to six months' time, and Mrs Waller would confirm the estimated time of completion in writing.

Adm

16. The Chairman then invited Ms Gladys LI, Chairman of the Bar, to respond to the Law Society's Report. Ms LI said that the Bar Association would not agree with the suggestion that it had not been co-operative. She stressed that the Bar Association was committed to co-operating with the Law Society which required liaison at the official level. Ms LI explained that if the Bar Association was asked to invoke disciplinary procedures, it could only be done on the basis that the matter was brought to its attention and individual barristers were formally asked to co-operate with the inspectors of the Law Society. Otherwise, the Bar Association did not have the means to enforce its own code of practice. The Bar Association therefore had emphasised that any request for document or co-operation had to be channelled via it. Ms Gladys LI also undertook to respond in detail to paragraphs 4.7 to 4.10 of the Law Society's Report after the meeting.

the Bar

17. Ms Emily LAU referred to Appendix 3 of the Law Society's Report and queried why it had not set out any resume of matters as indicated in para. 2.1. Mr A Harrod explained that the Law Society was reluctant to reveal details of the court inspections as some were still under active investigation. However, the Chairman urged the Law Society to consider supplying a summary of the court inspection's reports for members' reference. Ms LAU further asked and Mr Harrod responded that it was understood from the periodic report of court inspections that problems of touting and commission-taking in the courts had been contained. In addition, there was no proof of touting and commission-taking during the court inspections. Mr Harrod further explained to members how court inspection was actually conducted. In this regard, Mr WOO supplemented that the ICAC's representative had admitted at the last meeting of the Working Party's meeting that he was not aware of any recent complaint about touting in the court and was unable to substantiate such kind of activities. However, Mrs Waller recalled that at that Working Party's meeting, the ICAC's representative had said that there still seemed to be some kind of touting activities going on.

18. Mrs Waller explained that the Administration was satisfied with the number of court inspections conducted but whether the problem of touting and commission-taking had been effectively tackled was a separate question. Since it was always difficult to substantiate touting and commission-taking activities, ICAC was asked to provide a comprehensive assessment report.

19. Ms Emily LAU referred to paragraphs 4.11 and 4.12 of the Law Society's Report about giving additional powers to inspectors and remarked that criminalization of touting and commission-taking might be more effective. Mr WOO clarified that the Law Society had no intention of requesting more powers at the present stage. He said that all cases of refusal to hand over documents had been resolved as stated in para. 4.11. He stressed that the problems did not mean a failure of the Inspectorate Scheme.

20. After deliberation, some members were not assured that criminalization was unnecessary. They concluded that effectiveness of the Inspectorate Scheme conducted by the Law Society could be better assessed when the ICAC's assessment report was available.

VI.Review of the Small Claims Tribunal

(LegCo Paper No. PL 414/95-96)

21. At the invitation of the Chairman, Miss Sarah WU updated members on the position since the submission of the paper on the review of Small Claims Tribunal by the Judiciary Administrator's Office to the Panel. Members noted that the staggered court hour system had been working well to shorten the waiting time : (a) to 20 days for setting down of hearing and (b) to 40 days as the average waiting time from filing to first call. It had been more convenient to file a claim with the Registry (with Accounts Office) centralised. Miss WU also informed the meeting that a draft Bill was being prepared to revise the financial limit of Small Claims Tribunal from $15,000 to $30,000.

22. The Chairman referred to the extra case-load estimated by the Chief Magistrate as about 2,600 and asked how such an increased workload could be coped with. Miss WU explained that increase in efficiency would be a means. She further pointed out that some cases might not need to go to trial. The Chairman asked and Miss WU admitted that the waiting time for setting down of hearing might be lengthened.

23. In response to the Chairman's enquiry about the waste of Tribunal's time by members of the public through non-attendance at the hearing, Miss WU said that the number of cases being striked out due to non-attendance of claimant was about 806 out of 14,000 during the period from January to April 1996. Members noted that the Tribunal would be empowered to direct a party to comply with an order within a specified period of time in the proposed legislation.

24. Mr Albert HO queried whether the adjudicators should be given the power to decide transfer of cases from the Small Claims Tribunal to the High Court or the District Court as appropriate in view of the fact that some of these cases might only involve a very small sum of money. Miss WU was of the view that it was appropriate for adjudicators to have such power if the cases involved important legal principles and viewpoints. However, the proposed legislation had a provision to allow transfer of cases to the Labour Tribunal, Land Tribunal and the Minor Employment Claims Adjudication Board. Mrs Miriam LAU also concurred that adjudicators should have discretion. In this regard, Mr HO stressed that it was in the interest of the general public to have an expedient and inexpensive settlement.

25. In response to Mrs Miriam LAU's concern about para. 5(g) of the paper, Miss WU explained that computerisation had already helped to alleviate the problem of claims wrongly filed or filed in an unclear manner by inexperienced clerks. She also assured members that their work was being closely monitored by the Assistant Registrar working in the same office. Mrs LAU further asked and Miss WU responded that review of the financial limit of the Small Claims Tribunal would be conducted regularly.

26. The Chairman asked and Miss WU undertook to provide further statistics about claims filed with and the average waiting time of the Small Claims Tribunal for the period from January to April 1996 for members' information.

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VII.Staffing Proposal of the Legal Department

(LegCo Paper No. CB(2) 1159/95-96)

27. At the invitation of the Chairman, Mr Daniel R FUNG briefed members on the staffing proposal of the Legal Department which would be submitted to the Establishment Subcommittee for approval.

28. In response to Mr Martin LEE's enquiry about the justification for the creation of new posts, Mr Daniel R FUNG explained that the proposed Principal Crown Counsel (PCC) was to provide necessary professional support to the Attorney General, and to head the Mutual Legal Assistance (MLA) Unit. He further drew members' attention to the statistics in para. 15 of the staffing proposal which showed that MLA work had increased in volume. He also said that the work of the Unit had increased in complexity and importance in recent years because of the integration of Hong Kong's economy with the rest of the region and because of an increase in criminal work and the trend of which set to increase exponentially. As regards the creation of one post of Deputy Principal Crown Counsel (DPCC) for each of the LegCo Affairs Unit and Constitutional/Basic Law Unit, Mr FUNG said that there was no net increase of post since two supernumerary DPCC posts were to lapse simultaneously.

29. Mr Martin LEE asked and Mr Daniel R FUNG replied that the staffing proposal had not taken into account of any assistance to be given to the Chief Executive Designate. Mr LEE then expressed his reservation on the proposed creation of a post of PCC to assist the Attorney General personally since this might make the Attorney General another power centre. The Chairman also remarked that the staffing proposal seemed to be an expansion scheme. In this connection, Mr FUNG explained that the work of the Attorney General had evolved in such a way that there was a clear demarcation between his public and his departmental functions and that the need to service the AG's public functions which at present took up over 75% of his time warranted the establishment of the AG's office. The Chairman held a different view by saying that the Attorney General's responsibilities had been his traditional roles. Mrs Miriam LAU added that it might not be appropriate to draw reference from the number of hours the Attorney General had been attending the last LegCo session, which had increased due to a specific issue. Mr FUNG pointed out that although the functions of the Attorney General as well as the LegCo had not changed, the volume and complexity of his work had changed, having regard to the fact that Hong Kong was undergoing a fundamental constitutional change.

30. Mr Martin LEE referred to the proposed upgrading of the rank of the post of Administrative Assistant to the Attorney General to the same rank of the post of Administrative Assistant to the Chief Secretary and the Administrative Assistant to the Financial Secretary and queried the justifications in the light that Attorney General was at a rank (DL7) lower than the Chief Secretary (D10) and the Financial Secretary (D9). Mr Daniel R FUNG explained that the proposal was to address the AG's functional and operational needs and that the Administration had no present intention to upgrade the Attorney General to the same rank as that of the Chief Secretary and the Financial Secretary. Mr LEE was not convinced and expressed reservation on the proposal.

31. In response to Mrs Miriam LAU's enquiry, Mr Daniel R FUNG confirmed that there was no overlapping of work between the China Law Unit and the Constitutional/Basic Law Unit. Re-deployment of staff from the former to the latter was not feasible as the nature of their work was different. Furthermore, he cautioned that the workload of the China Law Unit had increased dramatically because it had to review almost every situation to ascertain whether China factor was involved in light of the integration of Hong Kong with China.

32. As regards the deletion of posts for Electoral and Constitutional Affairs Unit, Mr IP Kwok-him queried whether these posts would need to be created again for future elections. Mr Daniel R FUNG explained that the Electoral and Constitutional Affairs Unit was set up specifically to service the political reforms introduced by the Governor in Council in 1994 for the 1995 Election. He added that if there were new electoral arrangements with staffing implications, Legal Department would make a new staffing request as the circumstances might warrant.

33. The Chairman asked whether the Administration had had figures of staff time spent for lobbying the LegCo members on major pieces of legislation. Mr Daniel R FUNG said the Department had not kept the statistical information. However, he would include estimates for relevant posts in the staffing proposal when the same should be submitted to the Establishment Subcommittee.

Adm

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

LegCo Secretariat

4 June 1996