LegCo Paper No. CB(2) 848/96-97
(These minutes have been seen
by the Administration)
Ref : CB2/PL/AJLS

LegCo Panel on Administration of Justice and Legal Services

Minutes of Special Meeting
held on Wednesday, 4 December 1996 at 8:30 am
in Conference Room B of the LegCo Building

Members Present :

    Hon Margaret NG ( Chairman )
    Hon Emily LAU Wai-hing
    Dr Hon Philip WONG Yu-hong
    Hon Ambrose LAU Hon-chuen, JP
    Hon Bruce LIU Sing-lee

Members Absent :

    Hon Andrew CHENG Kar-foo (Deputy Chairman) *
    Hon Martin LEE Chu-ming, QC, JP *
    Hon Ronald ARCULLI, OBE, JP *
    Hon Mrs Miriam LAU Kin-yee, OBE, JP *
    Hon Eric LI Ka-cheung, OBE, JP *
    Hon James TO Kun-sun *
    Hon David CHU Yu-lin *
    Hon Albert HO Chun-yan *

Public Officers Attending :

For Item I

Mr Paul TANG
Deputy Director of Administration
Mr Stephen FISHER
Assistant Director of Administration

For Item II
Mr Peter NGUYEN, QC, JP
Director of Public Prosecutions
Mr Samuel LEUNG
Deputy Crown Prosecutor

Clerk in Attendance :

Mrs Betty LEUNG
Chief Assistant Secretary (2)3

Staff in Attendance :

Mr Jimmy MA
Legal Adviser
Miss Erin TSANG
Senior Assistant Secretary (2)7

I. Administration of Justice (Miscellaneous Provisions) Bill 1997

Upon the Chairman’s invitation, Messrs Paul TANG and Stephen FISHER briefed the meeting on the Administration’s paper (issued to Members vide LegCo Paper No. CB(2)540/96-97) which set out the following proposals:

  1. to amend the Supreme Court Ordinance, Cap. 4, the District Court Ordinance, Cap. 336, the Small Claims Tribunal Ordinance, Cap. 338, and the Coroners Ordinance, Cap. 14 to modernise the respective judicial qualifications for appointment as a judge of the Supreme Court, a District judge, an adjudicator of Small Claims Tribunal and a Coroner;

  2. to amend the Magistrates Ordinance, Cap. 227 to permit a police officer or bailiff to make a statutory declaration as proof of service of a summons to a person where the summons was left with a third person at the recipient’s last or most usual place of abode;

  3. to remove from the Application of English Law Ordinance, Cap. 88 the reference to the relevant provisions in the UK Libel Act 1792 concerning the functions of judge and jury in the trial of an indictment for libel and to replace appropriate provisions to the same effect in the Defamation Ordinance, Cap. 21; and

  4. to repeal the General Loan and Stock Ordinance, Cap. 72, the Hong Kong Treasury Bills (London) Ordinance, Cap. 75, the Public Stores Ordinance, Cap. 144, the Essential Commodities Reserves Ordinance, Cap. 146, the Law Reform (Miscellaneous Amendments) Ordinance, Cap. 350, the Norwegian Seamen’s Mission Incorporation Ordinance, Cap. 1056, the Institute of the Soeurs des Missions Etrangeres Incorporation Ordinance, Cap. 1088 and the Hong Kong General Chamber of Commerce Special Relief Fund Ordinance, Cap. 1127 on the grounds that those ordinances were either obsolete or outdated.

Judicial Qualifications

2. In reply to Dr Philip WONG, Mr Stephen FISHER said that appointment of judges was made upon the Judicial Services Commission’s recommendations and there was no open recruitment for judges. After discussion, the Chairman asked the Clerk to write to the Judiciary Administrator’s Office after the meeting for the following information:

Clerk
  1. the number of applicants for the posts of judicial officers and its breakdown in terms of local applicants and overseas applicants;
  2. the establishment and the current strength of judges and the time taken for the Judicial Services Commission to recommend an appointment and then the time needed for the post to be filled; and
  3. the establishment and the current strength of Recorders of the High Court and the plan to fill all vacancies.

3. Mr Ambrose LAU referred to paragraph 4 of the Administration’s paper and asked whether the Administration’s legislative proposal which sought to modernise outdated provisions for judicial qualifications had been discussed by the Joint Liaison Group (JLG). Mr Paul TANG said that the aim of the proposal was to replace outdated provisions and not to localise UK provisions. Therefore, the JLG had not been consulted. The Administration also considered that such proposed amendments were in line with Article 92 of the Basic Law.

4. In reply to Mr Bruce LIU, Mr Paul TANG informed the meeting that if the Bill were enacted, persons who were qualified to practise as advocates in the local courts or in other common law jurisdictions would be eligible for appointment. The common law jurisdictions included all Commonwealth countries (except Malta), the United States, the Republic of Ireland and Fiji. Mr Stephen FISHER also said that the legal profession and the Judiciary had been consulted on the proposed amendments and they agreed to the proposal to replace the references with colonial connotations by "Hong Kong or another common law jurisdiction.". In response to the Chairman’s enquiry as to whether sufficient time had been given to the Bar Association and the Law Society for consultation, Mr Stephen FISHER indicated that they had been given three weeks for consideration of the proposed amendments and they had replied in writing that they had no comments on the proposal. The Chairman asked and Mr Paul TANG assured the meeting that the principle to ensure the continuation of the present legal system as enshrined in the Basic Law would not be compromised by the introduction of such amendments. After discussion, the Administration agreed to consider the Chairman’s suggestion to include in the Bill a schedule to list out the countries of common law jurisdictions.

Adm

5. To address Members’ concern that judges recruited from the United States might not be compatible with Hong Kong’s legal system, Mr Paul TANG explained that the eligibility of candidates was one factor amongst various factors to assess their overall suitability for appointment.

6. Mr Ambrose LAU said that Article 92 of the Basic Law only provided that judges and other members of the judiciary of the Hong Kong Special Administrative Region (SAR) might be recruited from other common law jurisdictions. Yet, the amendment would lay down such appointment on the legislation. In view of the smooth operation of the present legal system and in view of the fact that there was no need to enlarge the pool of candidates for judges, he wondered whether such amendments were necessary.

7. To sum up, the Chairman said that since the legislative proposal involved substantial changes, a Bills Committee would need to be formed to consider it after its introduction to the LegCo.

Magistrates Ordinance

8. Mr Bruce LIU asked and Mr Stephen FISHER said that the existing practice of serving summons resulted in inefficient deployment of resources because the police officer or the bailiff who served the summons had to appear in court to depose to the service if the summons was left with a third person at the recipient’s last or most usual place of abode. The Judiciary had therefore been consulted and agreed to the necessity to amend the Magistrates Ordinance to allow the relevant police officer and bailiff to make a statutory declaration as proof of service in such circumstances. If the magistrate was not satisfied with the way the summons was served, such as to whom it was left with, the magistrate could still ask the relevant police officer or bailiff to depose to the service in court. In response to the Chairman, the Administration agreed to provide the following information after the meeting:

Adm

  1. the number of cases which required the appearance of police officers or bailiffs to depose the service in court; and
  2. the number of cases where statutory declarations were accepted as sufficient proof of service.

Defamation Ordinance

9. The Chairman asked and Mr Stephen FISHER confirmed that all the four provisions in the UK Libel Act 1792 would be incorporated in the draft Bill.

General Loan and Stock Ordinance

10. Dr Philip WONG asked and Mr Stephen FISHER confirmed that the meeting the General Loan and Stock Ordinance had not been in use for long because Hong Kong had surplus. Moreover, in view of the transfer of sovereignty, it was not necessary to maintain a special association with the United Kingdom in raising loans or issue of stock. Members agreed to the Administration’s suggestion to repeal the Ordinance.

II. Review of the prosecution service of the Legal Department

11. At the Chairman’s invitation, Legal Adviser said that the Public Accounts Committee (PAC) was currently considering the Director of Audit’s Report (the Report) on the review of the prosecution service of the Legal Department (issued to Panel Members vide LegCo Paper No. CB(2)495/96-97) and would submit its report to the Legislative Council in three months’ time. Therefore, he suggested Panel members to focus their discussion on the general policy aspects and to avoid deliberating on specific audited cases. After discussion, the meeting agreed to focus its discussion on the quality of legal services, the factors affecting such quality and the Administration’s relevant policies.

12. At the Chairman’s request, Mr Peter NGUYEN briefed Members about:

  1. the observations and recommendations made by the Working Party in respect of the decision-making process of the Prosecutions Division of the Legal Department;
  2. areas of work identified by the Director of Audit for improvement and his recommendations; and
  3. the Administration’s responses.

13. The Chairman referred to paragraph 7.25 of the report and expressed her deep concern on the drop in the level of experience of staff in the Prosecutions Division. Mr Peter NGUYEN told the meeting that each of the 16 sections of the Prosecutions Division was manned by one Deputy Principal Crown Counsel (DPCC) who had an average of 16 years of post qualification experience. He was underpinned by a second-in-charge who was normally Senior Crown Counsel and who had at least 10 years post qualification experience. The second-in-charge Counsel was supported by Senior Crown Counsel (SCC) or Crown Counsel (CC) of varying degrees of professional experience. The new recruits as CC normally had five years of experience since obtaining Post-graduate Certificate in Laws and would receive ten weeks’ intensive training before they were entrusted with prosecution work in courts. Mr Samuel LEUNG supplemented that the Prosecutions Division had an establishment of 112 Crown Counsel but with a strength of 99 only. They included 23 Directorate staff members (including three PCC, one consultant and 16 DPCC), 45 SCC and 31 CC. The average professional standing of the CCs was five years and five months since obtaining Post-graduate Certificate in Laws whereas that of the SCC was 12 years and 10 months. Mr Peter NGUYEN assured the meeting that when assigning cases, he would match the complexity of the cases with the professional experience of the counsel concerned. The Chairman then requested and the Administration agreed to provide after the meeting a breakdown on the years of experience of each officer in the Prosecutions Division.

Adm

15. In view of the loss of 65 counsel grade officers as reported by the Director of Audit, Miss Emily LAU asked whether open recruitment would be made to appoint more experienced counsel to fill the vacancies, irrespective of their levels. Mr Peter NGUYEN replied that new recruits were usually made at CC or SCC level, and it would have to be a policy decision for directorate level staff to be openly recruited. Furthermore all directorate posts in the Division had been filled. The Division was also running a Development Post Scheme to train suitable officers for duties at the directorate level. Nevertheless, and upon Mr Ambrose LAU’s request, he undertook to discuss with the Attorney General the feasibility of filling some of the directorate posts by open recruitment in case vacancies arose.

Adm

16. Members then asked whether the loss of 65 counsel grade officers was related to the localization policy, Mr Peter NGUYEN explained that the 65 counsel were mostly SCCs. Less than 10 of them left the service because of the localization programme. The rest left the Division due to transfer of posts or their own plan. The Division therefore appointed local officers to fill the vacancies. He confirmed that the localization policy was not administered at the expense of service quality. Upon the Chairman’s and Miss Emily LAU’s request, the Administration agreed to provide after the meeting a table showing the experience, rank and reasons for leaving of these 65 counsel.

Adm

17. Dr Philip WONG asked and Mr Peter NGUYEN said that consideration would be given to the justification and the prospect of conviction of a case before the Division instituted any prosecution and no political consideration would be involved. The Division had introduced a new case report form and counsel were required to give more details on the form after the conclusion of a case. The management would ask prosecuting counsel to supply further details if his/her case report was found to be deficient.

18. The Chairman asked and Mr Peter NGUYEN said that in deciding to prosecute or not, the principles applied by the Division were similar to those applied by the Crown Prosecution Services (CPS) in England. If the evidence in a case was insufficient or there was no reasonable chance of conviction, no further prosecution action would be instituted. If the case passed the evidential test, prosecuting counsel would proceed to consider the public interest elements before he decided whether or not to prosecute.

(Post-meeting notes : The Director of Public Prosecutions provided the requisite information which have been issued to members vide LegCo Paper No. CB(2) 844/96-97 on 3 January 1997.)

19. There being no other business, the meeting ended at 10:35 am.

LegCo Secretariat
3 January 1997

* -- Other Commitments

Last Updated on {{PUBLISH AUTO[[DATE("d mmm, yyyy")]]}}