LegCo Panel on
Administration of Justice and Legal Services

Action Column

I. Confirmation of Minutes of Previous Meetings and Matters Arising

The minutes of the last meeting held on 6 May 1996 had been issued to members vide LegCo Paper No. CB(2) 1479/95-96. No amendment was received and the minutes were taken as confirmed.

2. Members noted the comments of the Hong Kong Bar Association (issued vide LegCo Paper No. CB(2) 1547/95-96) on the Law Society of Hong Kong's Report on Inspectors' Powers. Members further agreed that the issue would be considered when the Law Society's response was available.

3. Members noted the paper provided by Hon Bruce LIU on the Small Claims Tribunal attaching two complaint letters and the reply from the Judiciary Administrator which had been issued vide LegCo Paper Nos. CB(2) 1392/95-96 and CB(2) 1476/95-96 respectively.

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

4. The next meeting would be held on Monday, 8 July 1996 at 4:30 p.m. to discuss the following items :

1. Rules set by judges in the conduct of court proceedings; and
2. Briefing out costs in the Bumiputra Malaysia Finance Limited case.

5. At the suggestion of the Chairman, Members agreed that a special meeting would be held on Tuesday, 25 June 1996 at 2:30 p.m. to receive the Attorney General's report on "Right of Audience". Members also agreed that submission from the Law Society of Hong Kong and the Hong Kong Bar Association should be invited.

(Post-meeting notes : Due to the unavailability of the Bar Association, the special meeting was subsequently cancelled and the subject would be discussed at the next regular meeting scheduled for 8 July 1996.)

Clerk

III. Listing Arrangements in the Coroner's Court and the Labour Tribunal

(LegCo Paper No. CB(2) 1436/95-96)

Labour Tribunal

6. At the invitation of the Chairman, Miss Sarah WU briefed members on the information paper regarding the listing arrangements in the Coroner's Court and the Labour Tribunal. Miss WU supplemented that the Labour Tribunal had received more than 3,000 claims and dealt with 2,100 claims from January 1996 to April 1996. She pointed out that a case which had been filed with the Labour Tribunal could normally be concluded within one or two month(s) depending on whether a trial was required. The Chairman asked and Miss WU undertook to provide updated statistics regarding the listing arrangement in the Labour Tribunal for members' information.

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7. In response to Mr Albert HO's enquiry, Miss Sarah WU explained that unnecessary delay for referral could be avoided in the light that a date would be set down for a ‘call over' hearing within 30 days of filing of the claim in person or the making of appointment by telephone. The Principal Presiding Officer or the Presiding Officer would arrange early transfer if necessary, having regard to the complexity of the case and the amount of claim involved.

8. Mr Bruce LIU asked whether the financial limit for the Minor Employment Claims Adjudication Board (MECAB) would be reviewed. Miss Sarah WU responded that MECAB was within the purview of the Education and Manpower Branch. However, she remarked that it would be a policy decision as to whether its financial limit should be raised. In this connection, she said that the Labour Tribunal was able to provide a quick and simple method of resolving disputes between employers and employees.

9. In response to Mr Eric LI's enquiry, Miss Sarah WU informed that the numbers of new cases filed and cases awaiting filing in 1994 were 5,976 and 3,314 respectively. The number of cases awaiting filing was only 1,009 at the end of 1995. At the Chairman's suggestion, Miss WU undertook to provide a tabulation of relevant statistics to reveal clearly the progress of the Labour Tribunal in processing cases.

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10. Mr Albert HO expressed concern that employers might not be willing to provide relevant information which would cause unnecessary delay to hearing or trial. Miss Sarah WU confirmed that the Tribunal Officer had no statutory power to compel the defendant to furnish relevant information. However, the Presiding Officer might draw certain irresistible inference from all the circumstances where failure to provide such information was unreasonable. Mrs Miriam LAU further asked whether the Labour Tribunal would have rules of discovery by which one party could request another party to supply certain documents before the Tribunal. At the Chairman's suggestion, Miss WU undertook to investigate the proceedings of the Labour Tribunal to ascertain: (a) what could be done if there were an uncooperative party; (b) the powers of the Labour Tribunal at different stages of a case; and (c) the powers of the Presiding Officer or Tribunal Officer. She added if there was a need to further empower the Tribunal, it could be addressed in the forthcoming legislative exercise.

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Coroner's Court

11. The Chairman asked and Miss WU informed that there were 2,283 death reports in 1995. Members expressed concern whether only one coroner would be sufficient to handle the caseload of the coroner's court. Miss Sarah WU pointed out that the staffing establishment for coroners was three although there was at present only one on strength. The staffing of the coroner's court was considered sufficient to handle the existing caseload. Miss WU assured members that the manpower requirement for coroner would be closely monitored.

12. Mr Andrew CHENG asked and Miss Sarah WU advised that the present system did not provide a formal channel for the deceased's family to request an inquest although the Attorney General had the power to order an inquest. However, a proposed provision of the Coroners Bill had already provided that the High Court might, on the application of a properly interested person or the Attorney General, order an inquest to be held into a death. In this connection, Mr Ambrose LAU asked whether there was a designated officer in the Legal Department to handle applications for holding inquests into the deaths of persons. Miss Sarah WU suggested and the Clerk was asked to check with the Legal Department.

Clerk

13. In response to the Chairman's enquiry, Miss Sarah WU said that police would normally be requested to conduct investigation and prepare death report within three months after a death was reported. The coroner's court would also closely monitor the progress of submitting the death report. Miss WU then undertook to provide further statistical information about the listing arrangement in the coroner's court (i.e. the processing time to prepare a death report upon a death was reported, the lead time from receipt of death report to the decision to order or not to order an inquest and the longest/shortest waiting time to hold a hearing) for members' reference.

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14. In the light of members' concern about the provision of legal aid for proceedings of the coroner's court, the Chairman suggested and members agreed that the Clerk should check whether the Bills Committee on the Coroners Bill would pursue the matter. If not, the Panel would take the matter further at a future meeting.

(Post-meeting notes : The Clerk checked with the Clerk to the Bills Committee on the Coroners Bill who said that the matter was being studied by the Bills Committee.)

Clerk

IV. Progress of Formation of the Court of Final Appeal

(LegCo Paper No. CB(2) 1407/95-96)

15. Mr Paul TANG referred to the paper on "Progress of Formation of the Court of Final Appeal" and informed members present that (a) the project to convert the former French Mission Building into the Court of Final Appeal Building had already started in April 1996; (b) the Judiciary was seeking views of both the Hong Kong Bar Association and Law Society of Hong Kong on a set of draft rules of procedure in respect of the Court of Final Appeal; and (c) transitional arrangements for processing appeal cases were being studied carefully.

16. Mr Bruce LIU queried whether judges of the Court of Final Appeal (CFA) could be appointed on 1 July 1997 in line with Article 90 of the Basic Law which required the Chief Executive to obtain the endorsement of the Legislative Council (LegCo). He was concerned that the legal basis for the appointment of judges would be subject to challenge in the light that the Basic Law only referred to LegCo and it was doubtful whether the provisional legislature was LegCo in its real sense. Mr Paul TANG responded that appointment of the judges of the Court of Final Appeal, according to the Basic Law, would be endorsed by the Legislative Council of the Special Administrative Region (SAR) at that time. The Chairman further enquired about the stance of the Administration on how the Court of Final Appeal could be formed according to the Court of Final Appeal Agreement (CFA Agreement) if only the provisional legislature existed in place of the first Legislative Council of SAR. Mr TANG pointed out that the detailed arrangement for the appointment of CFA judges in accordance with the CFA Agreement would be attended to by the Team Designate. Mr Andrew CHENG then enquired about the Administration's stance if the appointment of CFA judges was arranged to be endorsed by the Provisional Legislature. Mr TANG replied that the appointment of judges for the CFA would not be formally made until 1 July 1997 and reiterated that endorsement would have to be made by the legislature of the day. Mr LIU then said that there was a need to give a supplementary explanation to Article 90 of the Basic Law to include provisional legislature so as to clarify the legal basis for appointing the judges of the Court of Final Appeal.

17. In response to Mr Andrew CHENG's questions about the actual preparatory work and the timetable for the appointment of judges of the Court of Final Appeal, Mr Paul TANG stressed that preparatory work would be carried out when the Team Designate was in place and the Administration would assist in this respect. He added that the Administration was confident that the Court of Final Appeal would be in place on 1 July 1997. Miss Susie HO also pointed out that drafting of the rules of procedure in respect of the Court of Final Appeal would facilitate study of its detailed operational arrangement as well.

18. Mr Albert HO asked and Mr Paul TANG responded that the CFA Agreement had provided for the British side (including relevant Hong Kong Government departments) to participate and to provide assistance in the process for the establishment of the Court of Final Appeal before 1 July 1997. Mr David CHU further asked and Mr TANG clarified that the CFA Ordinance would not come into effect until 1 July 1997. While it could be construed that judges of the CFA would be appointed on 1 July 1997 or thereafter, such appointments were expected to be made on 1 July 1997 when the CFA Ordinance came into operation. However, details had to be worked out in consultation with the Chief Executive Designate and the Judicial Officers Recommendation Commission (the Commission). In this connection, Legal Adviser held a different view. He drew members' attention to section 1(2) of the CFA Ordinance which required the Court of Final Appeal to come into operation on 1 July 1997.

19. Mr IP Kwok-him asked what would be the role of the Hong Kong Government before 1 July 1997 in the process of the formation of the Court of Final Appeal. Mr Paul TANG responded that apart from the practical arrangements that required early action as mentioned in para 4 of the paper, the Administration could provide information or make recommendations, if requested by the Team Designate or the Commission, for the appointment of CFA judges. Mrs Miriam LAU then asked whether the Commission could start necessary preparatory work before the appointment of the team designate, in the light that the former should be independent of the latter. Mr TANG explained that the composition of the Commission would be similar to that of the existing Judicial Services Commission. Although it would not be appointed formally by the Chief Executive until 1 July 1997, it was presumed that the Commission Designate could make recommendations to the Chief Executive Designate before 1 July 1997.

20. In response to the Chairman's enquiry, Miss Susie HO explained that the rules of procedure in respect of the Court of Final Appeal were to be drawn up by the Rules Committee according to the CFA Ordinance. She drew members' attention to section 40 of the CFA Ordinance which set out the composition of the Rules Committee. The Chairman further asked and Miss HO responded that Judiciary had to start preparing the draft rules before the setting up of the Rules Committee in view of the lead-time required. The draft rules would be submitted to the Rules Committee for scrutiny when it was formally set up. Mrs Miriam LAU then remarked that there could be a Rules Committee designate. In this connection, Legal Adviser referred section 32 of the Interpretation and General Clauses Ordinance and pointed out that it was lawful for necessary preparatory work to be done between the enactment and the commencement of an Ordinance.

21. In response to Mr Bruce LIU's enquiry about the listing arrangement for the appeal cases from Hong Kong courts, Mr Paul TANG explained that it was decided not to determine a formal cut-off date before 1 July 1997 for application for leave to appeal from Hong Kong in the light that the Privy Council retained jurisdiction over appeal cases from Hong Kong courts up to 30 June 1997. However, the idea of setting an informal cut-off date (a sensible date before which documents for leave to appeal had to be lodged) was under consideration. Mr Stephen Fisher supplemented that the CFA Ordinance had provided for transitional rules for listing arrangement of appeal cases.

22. Messrs Andrew CHENG and Albert HO expressed concern over protection of the right of final appeal during the transitional period. Mr Paul TANG informed the meeting that the transitional arrangement should be sorted out around the Autumn of 1996. Mrs Miriam LAU then asked and Mr TANG responded that it was expected that the Privy Council would be able to process all the appeal cases from Hong Kong court up to an agreed informal cut-off date. In this connection, Legal Adviser reminded that the appellant of any appeal which had not been finally disposed of on or before 30 June 1997, according to the CFA Ordinance, had the right to have his case being transferred to the CFA. In addition, CFA would have the power to give directions as to costs in relation to an appeal in the Privy Council which was transferred to the CFA. He then reminded the Administration that the then Bills Committee to study the Hong Kong CFA Bill had expressed concern about how the remuneration for permanent judges could be justified in terms of value for money, and about the duties to be performed by these judges in the light that their remuneration would be at a very high rate and the number of cases going to the CFA was expected to be small. Mr TANG responded that such issue would be better addressed after the setting up of the CFA. Legal Adviser maintained that such criteria had to be considered in view of the very likelihood that a funding proposal for the establishment of the relevant posts would be submitted to the Finance Committee for approval in advance. In this regard, the Chairman suggested the Administration to consider the Legal Adviser's point and to give supplementary answers, if necessary, after the meeting.

Adm

V. Continuation of Legal and Judicial Systems after 1997

(LegCo Paper Nos. CB(2) 1430/95-96 and CB(2) 1541/95-96)

23. Members noted the letter dated 24 May 1996 from the Deputy Solicitor General on "Continuation of Legal and Judicial Systems after 1997".

24. The Legal Adviser had prepared a paper, according to members' request at the last Panel meeting, interpreting provisions in the Joint Declaration (JD) and the Basic Law (BL) relevant to the continuation of the legal and judicial systems after 30 June 1997. The Chairman thanked the Legal Adviser for preparing the paper which was issued to members on 7 June 1996. Members also noted the correct text of Article 93 of the BL as referred in para. 10 of page 6 of the paper.

25. At the invitation of the Chairman, Legal Adviser took members through his paper briefly. He pointed out that Article 93 of the BL was particularly relevant, since it referred to the appointment system of judicial officers after 1997. However, other provisions of the JD and BL were also relevant for an overall appreciation of the position. In summary, Legal Adviser was of the view that ambiguity in Article 93 of the BL remained and clarification was needed.

26. The Chairman then enquired about the areas of ambiguity. Legal Adviser quoted the answer of the Secretary for Constitutional Affairs to a supplementary question at the LegCo sitting on 15 May 1996 which stated that the only other formality required was taking the oath of allegiance under Article 104 of BL. He commented that such an interpretation was over optimistic in the light that Article 88 of the BL was only a statement of the source of the legal authority for appointing judges and did not address the transition of serving judges. He cautioned that Article 93 of the BL was not conclusive that all serving judges who wished to remain in service should be appointed.

27. Mr Albert HO took the view that Article 93 of the BL was overriding Article 88 in the matter of transition of judges because the latter provided that an independent commission composed of local judges was to make recommendation for the appointment of judges of the courts of the SAR and that it would not be possible to constitute such a commission if serving judges were not to be remained in post after 1 July 1997. He opined that Article 88 should only apply to new appointment of judges. Legal Adviser agreed that although this was a reasonable interpretation, his concern was that the provisions were open to more than one interpretation.

28. The Chairman expressed grave concern in view of the possible ambiguities in interpreting the relevant provisions. She maintained that it was of vital importance for the Hong Kong Government to clarify the position and to reach a consensus in respect of the continuation of legal and judicial systems after 1997 with the Chinese side at the Joint Liaison Group. Mr Albert HO shared her view.

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

LegCo Secretariat
1 July 1996