LegCo Paper No. CB(2)1241/96-97
(These minutes have been seen
by the Administration)
Ref : CB2/PL/AJLS

LegCo Panel on Administration of Justice and Legal Services

Minutes of the Fifth Meeting held on Thursday, 9 January 1997 at 4:30 pm in Conference Room A of the Legislative Council Building

Members Present :

Members Absent :

Public Officers Attending :

Item No. IV
Mr Stephen WONG: Solicitor General (Acting)
Attorney General's Chambers (AGC)
Mr CHEUNG Wai-sun: Deputy Principal Crown Counsel, AGC
Miss Melody HUI: Senior Crown Counsel, AGC
Item No. V
Mr Richard HOARE, OBE, JP: Director of Administration
Item No. VI
Mr Stephen WONG: Solicitor General (Acting), AGC
Mr Peter H K CHEUNG: Chambers Manager, AGC

Attendance by Invitation :

Item No. IV
Mr Michael POLL: The Hong Kong Bar Association

Clerk in Attendance :

Mrs Betty LEUNG: Chief Assistant Secretary (2) 3

Staff in Attendance :

Mr Jimmy MA: Legal Adviser
Mr LEE Yu-sung: Senior Assistant Legal Adviser
Miss Flora TAI: Senior Assistant Secretary (2) 3

I. Confirmation of minutes of previous meeting and matters arising

II. List of information papers circulated to members since the last meeting

III. Date of next meeting and items for discussion

IV. Criminal Procedure Ordinance (Cap. 221) and Mental Health Ordinance (Cap. 136)

V. Follow-up on Judge CAIRD case

VI. Staffing proposal by the Legal Department

I. Confirmation of minutes of previous meeting and matters arising

1 The minutes of the special meeting held on 4 December 1996 and the minutes of the regular meeting held on 9 December 1996 were issued to members vide LegCo Paper No. CB(2) 850/96-97. No amendment was received and these minutes were taken as confirmed.

II. List of information papers circulated to members since the last meeting

2. Members noted the list of information papers circulated to them since the last meeting attached to the agenda as well as LegCo Paper No. CB(2)835/96-97.

III. Date of next meeting and items for discussion

3. Since the date of the next regular meeting scheduled for 10 February 1997 fell on the Fourth Day of the Chinese New Year, members agreed to re-schedule the meeting for Monday, 17 February 1997 at 4:30 pm. Members further agreed that the next regular meeting should discuss -

the work of the Legal Aid Services Council; and
the formation of the Court of Final Appeal (CFA).

For agenda item (b), members asked the Clerk to raise the following questions relating to the formation of the CFA to the Administration for discussion at the next meeting -

whether the Chief Executive of the Hong Kong Special Administrative Region would be consulted on the Government's plan in setting up the CFA?
Could members be informed of the update progress of building work of the Court?
Whether a name list had been drawn up in respect of foreign judges who were eligible for appointment as judges of the CFA?
Was there a detailed plan for transitional arrangements for processing appeals and what would be the actual arrangements if the cases could not be heard before 1 July 1997? Would the Government propose an informal deadline for appeals to be lodged with the Privy Council? Would the Government liaise with the Privy Council with a view to making an early announcement on the matter? How many cases were lodged by Hong Kong with the Privy Council during the immediate past 12 months and how many outstanding cases were awaiting to be heard?
Would arrangement be made so that judges of the Court of Final Appeal would not hear cases which were heard by them as Justices of Appeal?
Would the Administration provide information on the Judicial Service Commission and the details of the recent appointments, including the tenure of office?

4. Members also agreed that the Clerk should write to urge the Legal Department to expedite the work of parties concerned including the Independent Commission Against Commission, the Hong Kong Bar Association (the Bar) and the Law Society of Hong Kong (the Law Society), for the completion of the report on the review of effectiveness of the Inspectorate Scheme of the Law Society, so that it could be discussed in the Panel's March meeting. At the suggestion of the Chairman, members further agreed to request information from the Bar on the delay in the listing of indemnity cases due to unavailability of Masters in the Judiciary for consideration as to whether the issue should be discussed by the Panel at a future meeting. At Mr David CHU's suggestion, the Clerk was asked to request written information from the Director of Administration on the expenditure of legal aid services.

Clerk

IV. Criminal Procedure Ordinance (Cap. 221) and Mental Health Ordinance (Cap. 136)

(LegCo Paper No. CB(2) 811/96-97)

5. At the invitation of the Chairman, Mr Stephen WONG briefed members on the discussion paper from the Attorney General's Office on "Criminal Procedure (Amendment) Ordinance 1996". He said that the term "disability" should be more appropriately translated as

instead of

in Chinese. After reviewing the laws of various jurisdictions, the Administration had concluded that it was not necessary : (a) to define the terms "disability" and/or "fitness to be tried" in the Ordinance given the common law definitions that had been adopted by the courts; and (b) to limit particular disposal options to persons found not guilty by reason of insanity and persons found under disability, thereby affecting the maximum flexibility now enjoyed by the courts. The Chairman then asked and Mr Michael POLL said that the Administration's decision not to distinguish between an accused person who was not guilty by reason of insanity and an accused person under disability who did the act or made the omission charged was a reasonable approach and therefore was supported by the Bar.

Clerk
Clerk

6. Mr Bruce LIU asked and Mr Stephen WONG explained that definitions of "disability" and "fitness to be tried" could be used interchangeably. Mr WONG pointed out that the definition of "disability" was relatively broad which covered insanity and mental disorder (including being mentally ill and mentally retarded). Senile dementia could therefore be covered by the definition of "disability" which would be dealt with by new section 76 of the Ordinance. In this connection, Mr CHEUNG Wai-sun also drew members' attention to the common law definition of "disability" as referred to in para. 10 of the discussion paper. Mr LIU further asked and Mr WONG confirmed that as a matter of legal procedure, a court would rule at the time of the trial whether a person who claimed to suffer from senile dementia was fit to plead. That ruling would still be valid in law even if the mental condition of that person changed after the trial. The ruling once given was valid in law even if the health condition of that person changed after the trial. In this regard, Mr POLL remarked that if dementia was used as a defence in a fairly simple case, the court might be able to rely on independent witnesses to testify whether the defendant had actually committed the act charged. However, problem would arise for a complex fraud case when the defendant claimed that he could not conduct his defence because he could not remember all the intricacies due to dementia. The court had to be careful and stringent with the test it applied as to whether the person really had the illness. Otherwise, it might be perceived as a miscarriage of justice.

7. Members had no other questions on the paper. The Chairman then thanked representatives of the Administration and the Bar Association for attending the meeting.

V. Follow-up on Judge CAIRD case

8. With reference to the press release dated 23 December 1996 issued by the Government on the Judge CAIRD case as attached, Mr Ambrose LAU asked and Mr Richard HOARE confirmed that Judge CAIRD would be eligible to full retirement benefits since his application for early retirement was approved. However, the Letters Patent did not specify the position if a judge was removed from office because of misconduct following the appointment of a judicial tribunal. He thought that there might be a degree of discretion as to whether he would still be entitled to full retirement benefits. Mr LAU then opined that it might not be fair that a judge would be able to get full retirement benefits without being accountable to his misconduct if his application for early retirement had been approved.

Mr HOARE explained that the purpose of the tribunal was to determine whether Judge CAIRD should be removed from his office. As approval had now been given for his early retirement, the appointment of a judicial tribunal would serve no purpose. Mr James TO remarked that the press release failed to dispell all doubts about attempts to put pressure on Judge CAIRD. Mr TO further asked and Mr HOARE confirmed that to his knowledge, the Governor had no further plans for an inquiry.

9. Mr James TO then expressed strong dissatisfaction with the Governor's decision to scrap his plan to set up a Judicial Tribunal to investigate the issue because it might tarnish the rule of law in Hong Kong and the credibility of the Judiciary. He maintained that the Governor should proceed with setting up the Judicial Tribunal despite Judge CAIRD's retirement so that the public could know the truth. In this regard, Mr HOARE confirmed that he had relayed, as he undertook, members' views expressed at the Panel's meeting in November 1996 and members' request in relation to the report made by the acting Chief Justice. Mr TO maintained that: (a) a full and open inquiry should be conducted on the matter in the light that the thrust of public concern over the Judge CAIRD case was whether or not he had been subject to political pressure in hearing the fraud trial of Aaron NATTRASS; and (b) the report on the internal inquiry conducted by Acting Chief Justice should be made public. Other members shared his view. In this connection, the Chairman drew members' attention to the letter dated 6 December 1996 from the Acting Chief Justice, issued to members under cover of LegCo Paper No. CB(2)695/96-97. The Acting Chief Justice had suggested that LegCo Members might articulate their concern by raising the matter with the Chief Secretary. Members therefore asked and Mr HOARE agreed to pass to the Chief Secretary members' call for the disclosure of the report.

Adm

10. Mr Andrew CHENG asked how the LegCo could follow up Judge CAIRD case within its powers if the Governor decided not to take any further action, having regard to the constitutional principles of separation of powers of the executive, legislature and the judiciary. Legal Adviser reiterated that the power to appoint and to dismiss a judge rested on the Governor under the Letters Patent. These constitutional principles were reflected in the following Standing Orders which governed proceedings in the Council -

Standing Order No. 18(1)(j) (Contents of Questions) which stated that a question should not be asked about the character or conduct of any person mentioned in SO No. 31(7) (i.e. Her Majesty and Members of the Royal Family) and (8) (i.e. the Governor or Members of the Executive or Legislative Councils) and a question should not be asked about the character or conduct of any other person except in his official or public capacity; and
Standing Order No. 31(9) (Contents of Speeches) which stated that the conduct of Judges or other persons performing judicial functions should not be raised.
Moreover, Standing Order No. 32A provided that these orders should apply to the proceedings in a standing or select committee unless the chairman of the committee ordered otherwise.

11. With reference to Mr James TO's proposal for LegCo to set up a committee to investigate the matter, Legal Adviser cautioned that it was of paramount importance as a constitutional principle for LegCo not to act or be seen acting in any way to jeopardize the Judiciary's independence. He added that to his knowledge, inquiries of such kind in England and Scotland were normally conducted by an independent commission, chaired by a prestigious retired judge, separated from the legislature. The report would normally be submitted to Prime Minister or Parliament.

12. Mr James TO informed the meeting that he would consider moving a motion of impeachment on the Governor if he refused to order a full and open inquiry to investigate whether Judge CAIRD was subject to political pressure by other judges. Ms Emily LAU and Mr Andrew CHENG supported his proposed course of action. Ms LAU added that members could also question the Governor during the next Governor's Question Time scheduled for 23 January 1997. In this regard, Mr Eric LI cautioned that it was a very serious matter to file a motion of impeachment on the Governor and it warranted careful consideration. After discussion, members agreed that the Chairman should write to the Governor: (a) to convey that the Panel called for a full and open inquiry to clear the public's mind of all doubts; and (b) to seek clarification whether he had no further plan for an inquiry. The Panel could then decide whether or not to file a motion of impeachment if the Governor declined to take further action on the matter. The Chairman also asked and Mr HOARE agreed to relay the strong sentiment expressed by members at the meeting to the Governor. In this connection, the Chairman would request the Chairman of the House Committee to convey members' wish to raise the matter with the Governor at Governor's Question Time to the Chief Secretary.

Clerk
Adm
Chairman

VI.Staffing proposal by the Legal Department

(LegCo Paper No. CB(2) 841/96-97)

13. Members noted the discussion paper from the Attorney General's Office on the creation of a supernumerary post of Deputy Principal Crown Counsel (DPCC) for a period of three years in the Legal Policy Division of the Legal Department. Mr Stephen WONG stressed that the proposal was made on the basis of practical need and anticipated workload. Regarding the demand for advice on the Basic Law in recent years, Mr WONG informed the meeting that the number of written and comprehensive advice given in 1996 was 29. It would take no fewer than two or three days to prepare one legal advice of this kind. In response to Mr Bruce LIU's enquiry, Mr WONG explained that apart from rendering advice, the Legal Policy Division had to prepare for foreseeable legal questions and to comment on legal policy aspects for existing and proposed legislation, as well as polices. A data base on Basic Law was also under preparation. Mr LIU further asked and Mr WONG responded that it would not be feasible to brief out work relating to legal policy for consistency purpose and with regard to the sensitivity of the work. Various counsel of the General Advisory and China Law Units of the Legal Policy Division gave advice on the Basic Law on an ad hoc basis at present. However, an overall co-ordination in this respect was needed. In this regard, Mr LIU suggested that the post could be created for a period of 2 years and then extended after conducting a review. Mr Peter CHEUNG explained that if the post was created for two years only, there would not be sufficient time for an overall review in the light that the review would then have to be conducted probably after one and an half years after the post was created.

14. Mr Andrew CHENG asked for additional justifications for the proposal in the light that workload arising from Basic Law should have been foreseen when the China Law Unit had been set up. Mr Stephen WONG said that the Legal Department could not accurately assess the work at the time in term of workload and nature. The number of mutual visits had increased during recent years. Extra tasks were added to the China Law Unit after it had been set up which included publication of China Law Quarterly and China Law Update (monthly) as well as setting up a Chinese Law research database. In this connection, the Chairman expressed concern about the deployment of manpower resources in the Legal Department and drew members' attention to the sentence "the Division managed to secure two Senior Assistant Crown Prosecutor posts based on other justifications" raised at para. 7.23 on page 352 of the Director of Audit's report on the results of value for money audits (Report No. 27) published in October 1996. She remarked that the Legal Department should prioritize its work given the tight manpower resources.

15. At Mr James TO's suggestion, the Chairman asked the Administration to include more justifications in quantitative and specific terms in the staffing proposal to be submitted to the Establishment Subcommittee later, so as to facilitate Members' consideration. Members then noted the paper and agreed that they had not taken any position on the proposal.

Adm

16. There being no other business, the meeting ended at 6:55 pm.

LegCo Secretariat
16 January 1997

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