LegCo Panel on
Administration of Justice and Legal Services

I. Confirmation of minutes of previous meetings and matters arising

The minutes of the special meeting held on 26 October 1996 on the Use of Chinese in Courts were issued to members vide LegCo Paper No. CB(2) 623/96-97 and the minutes of the regular meeting held on 11 November 1996 were issued to members vide LegCo Paper No. CB(2) 596/96-97. No amendment was received and these minutes were taken as confirmed.

New Third Schedule to the Marriage Ordinance (Cap. 181)

2. Members noted the new Third Schedule to the Marriage Ordinance which was attached to LegCo Paper No. CB(2) 490/96-97. Legal Adviser drew members’ attention that the phrase "who is acting" in para. 3(1) of the Third Schedule was different from that published in the Gazette, which was "having custody of the party". He advised that the Third Schedule as published in the Gazette was the authentic version. Members were concerned that there were inconsistencies in the list of circumstances in which consent to a marriage was required, as set out in the Third Schedule. Legal Adviser further pointed out that proposed section 18A of the Marriage Ordinance empowered a District Judge to give consent to marriage in certain cases where consent to marriage could not be obtained. However, it was uncertain whether the text of the relevant provisions could address members’ concerns in this respect. As agreed in the House Committee meeting on 6 December 1996, members agreed to follow up the matter if necessary, pending clarification from the Administration.

Style change - using a schedule for definitions in the legislation

3. Members noted that the Hong Kong Bar Association and the Law Society of Hong Kong had responded to the Administration’s letter and had indicated no objection to the proposed change of style (the replied letters were issued to members vide LegCo Paper No. CB(2) 556/96-97 on 28 November 1996). The Chairman remarked that the proposal would improve the presentation of legislation and could facilitate readers of legislation. She noted that a flag would be placed at section 2 of the ordinance to indicate that the definitions were in a certain section or schedule. However, Mr Martin LEE was of the view that using a schedule for definitions in the legislation might be appropriate only for amendments to existing ordinances. For new ordinances, definitions should follow the existing presentation and be placed under the "Interpretation" section as the second section in legislation. Mrs Miriam LAU said that she would agree that definitions which were of restricted application could appear in the relevant part or section of the ordinance. She would have reservation for using a schedule for definitions at the back of the legislation. Members then discussed the proposal. Whilst some members expressed support to it, other members had reservation about it and preferred the existing presentation. Members then agreed that the Panel should report to the House Committee that it had a difference of opinion and it could not reach any conclusion on the proposal.

Clerk

II. Date of next meeting and items for discussion

4. Since the date of the next regular meeting scheduled for 13 January 1997 fell on the same date of the Opening of the Legal Year, members agreed to reschedule the meeting for Thursday, 9 January 1997 at 4:30 pm. Members further agreed that the next regular meeting should discuss:

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

   - Definition of "fitness to be tried" and "disability"

   - Distinction 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;

2. Review of the effectiveness of the Inspectorate Scheme conducted by the Law Society of Hong Kong; and
3. Staffing proposals of the Legal Department.

5. The Chairman then informed the meeting that if members had no objection, Mr Richard HOARE, Director of Administration would not attend the meeting for the agenda item on the Judge CAIRD situation because: (a) he had nothing further to report since the last meeting; and (b) the report of the Medical Board on Judge CAIRD’s health had not been finalised. Members agreed to defer the issue to a future meeting when there was new development.

III. Meeting with the Chairman of the Legal Aid Services Council

6. At the invitation of the Chairman, Mr LEE Jark-pui briefed members on the work of the Legal Aid Services Council (the Council). The Council had held two meetings since setting up in September 1996, which considered and discussed: (a) its funding arrangement; (b) its logo; (c) meeting arrangements; (d) application and appeal procedures of legal aid; and (e) the Legal Aid Services (Amendment) Bill. The next meeting would discuss the system for briefing out assignments to private legal practitioners and the monitoring role of the Legal Aid Department (the Department) on the performance of these private legal practitioners. Members then raised a number of questions and representatives of the Council responded accordingly. The gist of their deliberations is summarized in the following paragraphs.

Support to the Council

7. Members noted that: (a) the funding proposal of the Council for 1997/98 would be $5 million; (b) the permanent office would commence operation in January 1997; and (c) all seven staff members had been in post. Ms Emily LAU asked and Mr LEE Jark-pui responded that in overseeing the administration of the legal aid services of the Department, the Council would place emphasis on the management aspect, instead of the daily operational activities, and had asked for regular comprehensive reports of the Department, and not case-by-case reports. The Council had to be content with the fact that it had to rely on the Administration for information about legal aid services, due to its scope and resources. In this regard, Ms LAU felt that the Council should establish an effective monitoring mechanism over the Department in order to seek for improvement of the quality of legal aid services; and should request for more resources if it deemed necessary in order to properly perform its functions.

Areas for further study by the Council

8. Mr Anthony CHOW informed the meeting that the Council had identified 12 areas in the provision of legal aid services which warranted detailed study. They related to: case processing and appeal, merits and means tests, briefing-out, communication with and monitoring private legal practitioners, publicity and independence of the Council, public demand on and coverage of the legal aid services. The Council had asked the Department to submit an account of operation in these aspects. Mr LEE Jark-pui supplemented that the Department was now undertaking an internal study for improvements and would implement changes when necessary. In reply to Mr Albert HO, Mr LEE said that the Council would participate in drawing up the second Performance Pledge of the Department.

Application procedures and appeal avenue for legal aid services

9. Mr LEE Jark-pui said that the Council had conducted a preliminary study on the application procedure and appeal avenue for legal aid services, and as a result, it had impressed on the Department the importance to maintain close liaison with the clients by regularly updating them of their applications. The Council was also considering an alternative appeal channel to enable the clients to better represent themselves. In this connection, Mr Bruce LIU asked if the Council would consider means to shorten the application processing time of cases which would bring trauma to the applicants, e.g. divorce case which usually took three months to process.

Staffing for Legal Aid Department

10. In response to Mrs Elsie TU’s observation that the Legal Aid Department needed more manpower resources, members suggested the Council to undertake a study on the staffing situation of the Department and if it was understaffed, should support it to request for more manpower resources so that it would be placed to honour its pledge of an efficient legal aid services to the public. Mr LEE Jark-pui and Mrs TU then informed members that the Department had commissioned a consultancy study to advise on possible improvements in processing applications for legal aid services, which included feasibility of redeployment of staff. The Department was expected to submit its proposal for improvement on application procedure in January 1997.

Transparency of the Council and declaration of conflict of interests by Council members

11. Mr LEE Jark-pui informed members that the Council had decided that its meeting would be held in public, and its papers would be open to the public, except when confidential items were to be discussed. The Council also agreed that a member who was directly or indirectly interested in a matter being considered by the Council should declare his interest at the meeting and the chairman would then decide whether such member should attend the meeting for that matter or not and might be asked to return relevant papers. Ms Emily LAU expressed concern that such member had already had sight of relevant documents. She suggested that there should be safeguarding arrangement in place in this regard. She urged the Council to take early action to set down clear and objective guidelines in respect of conflict of interests.

Scope of legal aid services

12. Mr Albert HO asked whether the Council had plan to review the scope of legal aid services. Mr LEE Jark-pui responded that it would be a subject of study in due course. The Council was at present reviewing the delay in application procedure and appeal process. Mr HO then suggested and Mr LEE agreed to consider taking early steps to launch a public consultation exercise about the scope of legal aid services in advance of the future review.

Establishment of an independent legal aid authority

13. Mr LEE Jark-pui informed the meeting that the Council attached equal importance to the issue of independence as well as to the efficient provision of legal aid services. As far as its resources permitted, the Council had been working towards this direction, with the assistance of the Hong Kong Bar Association and the Law Society of Hong Kong. Mr Martin LEE expressed concern that the Council might be delayed in attempting to achieve an independent status since: (a) it had to rely on the Department for resources and information; and (b) the Administration had not been active in promoting such status for the Council. He maintained that (a) timeframe to study the feasibility and desirability of the establishment of an independent legal aid authority should be set; and (b) the issue of independence should be dealt with separately from the management review of legal aid services. Mr LEE Jark-pui said that the Council might be able to report on progress of the matter in April 1997. Mr Bruce LIU then suggested the Council to provide a discussion paper to the Panel at that time.

the Council

14. The Chairman thanked representatives of the Council for attending the meeting and expressed the Panel’s support to the Council for working towards improving the overall quality of legal aid services.

IV. Funding proposal for the Judiciary Information Systems Strategy Phase II

(LegCo Paper Nos. CB(2) 557/96-97 and CB(2) 617/96-97)

15. At the invitation of the Chairman, Ms Alice TAI said that the Judiciary Information Systems Strategy (JISS) was a three-phrased development programme. JISS Phase I had been successfully launched in November 1995. Phase II Computerization Project was regrettably behind schedule because the contractor was unable to complete the planning proposal in time. Yet she was confident that full implementation of the three-phase programme would be on schedule as Phase III feasibility study was already being commissioned. Members then raised a number of questions about the JISS Computerization Project and representatives of the Office of the Judiciary Administrator and the Information Technology Services Department (ITSD) responded accordingly. The gist of the discussion is summarized in the following paragraphs.

Co-ordination and monitoring work

16. Ms Emily LAU asked how an integrated approach to case management through the central database could assist in monitoring case progress and co-ordinating court support services. Ms Alice TAI explained that the programme would facilitate communication and information flow and would eliminate waste of court time and resources. Experience of the system at the District Court’s level was encouraging in that the system could assist listing officers to schedule and re-schedule hearings (as necessary) effectively and efficiently. In response to Mr Martin LEE, Ms Alice TAI said that training would be provided to the staff on the use of the Project. The existing manual system would operate in parallel with the computerization programme during the transitional period.

Document submissions

17. Ms Emily LAU asked whether it was feasible to submit document via electronic despatch. Ms Alice TAI said that it would be an area for the JISS Phase III feasibility study. However, the introduction of electronic cause books and registers could enable the judges’ clerks to be informed of any documents received at various workstations in the registries which were in need of urgent attention and available for pick-up. Mr K L HUI added that electronic filing of document would be studied in Phase III, including its feasibility, related technical problems and resources implication. Ms TAI said that since electronic filing of documents would involve technical as well as legal implications, a detailed study would be necessary.

Expected improvement in service

18. Mr Andrew CHENG asked and Mr K L HUI responded that the present Decree Absolute Register search time was long because information was arranged by case number sequence only and usually the customers did not know the case number. The computerization programme would enable customers to also use the party’s name, in either English or Chinese, in their search. Mr David CHU said that he supported the funding proposal in view of the expected efficiency improvements. He asked whether the estimated cost was too low, in view of the technical complexity involved. In response to Mr CHU’s enquiry, Mr HUI said that Phase II Computerization Project would be developed from the programmes used in Phase I and Case and Summons Management System for the Magistracy, resulting in some savings in development cost.

19. Ms Emily LAU referred to para. 9(b) of the information paper and asked the number of incidents of money being inadvertently released and the reason for the errors. Ms Alice TAI and Mr Nicholas YEK replied that there had been six such incidents on record, mainly because of delays in notifying the relevant parties of the Court orders on bankruptcy and company winding up cases. With computerization, notification of orders on such matters could be made immediately to all concerned parties.

Legal reference

20. Mr Albert HO referred to the plan to make major legal reference available to judges and judicial officers via the network and asked whether such network could be extended to law firms at a cost. Ms Alice TAI said that interface with systems in relevant Government departments and library systems of tertiary institutions would be examined in Phase III, but that with individual law firms would need careful consideration due to cost implications. Yet, the Judiciary would try its best to achieve the technical feasibility of such interface. In this regard, Mr HO maintained that access of the legal profession to these valuable materials would be important. The Chairman then asked whether interconnection with systems in Government departments would place the independence of the Judiciary at stake. Ms TAI said that the Judiciary attached utmost importance to the constitutional principle of its independence. Unnecessary exchange of information with Government departments would be avoided, as had been demonstrated in the development of the Case and Summons Management System for Magistracy. She explained that interconnection with the Legal Department, Legal Aid Department and Inland Revenue Department was necessary because they were all prosecuting authorities, and the purpose was to reduce duplication of effort during the same prosecution procedure. Mr K L HUI said that the interconnection served as an electronic despatch of document. The Chairman stressed that a monitoring mechanism had to be in place on unnecessary interface. She then suggested and members agreed that the issue would be discussed when the funding proposal for the JISS Phase III Computerization Project was submitted.

Court recording and transcription services for High Court

21. In answer to Mr Martin LEE, Ms Alice TAI said that there was a plan to extend computerized audio recording and transcription services to the High Court because there had been difficulty in recruiting and retaining court recorders, and Chinese language was being introduced into the High Court. At present, audio recording facilities had been installed in 12 criminal courts of the High Court and they proved to be useful. Funding for installing computerized court audio recording and transcription system in all other courts of the High Court would be proposed in the next financial year. Mr Martin LEE then asked and Ms TAI said that the old recording equipment in the High Court were being used when court reporters were not available. At Mr LEE’s request, Ms TAI agreed to provide statistics about the number of times such equipment had been used after the meeting.

Judiciary Administrator

Jury

22. In the light that the system would enable random selection of jurors based on their language proficiency, Ms Emily LAU asked whether it was the plan to maintain separate lists of jurors based on language ability. The Chairman expressed concern that the system might enable segregation of jurors according to their background etc. Ms Alice TAI explained that the system was designed to technically perform as many functions as possible so that it could provide a wide range of support services to any policy decision. However, whether to operate more than one list of jurors based on language ability was a policy issue which should be dealt with separately. Members then agreed to consider such a policy issue in detail at the Panel special meeting on the use of Chinese in courts scheduled for Saturday, 14 December 1996.

22. There being no other business, the meeting ended at 6:35 pm.

LegCo Secretariat
13 December 1996