The minutes of the regular meeting held on 25 February 1997 were issued to members vide LegCo Paper No. CB(2) 1143/96-97. No amendment was received and these minutes were confirmed. As agreed at the last meeting, Mr Albert HO reported on the issue relating to the rules set by judges in the conduct of court proceedings. He informed members that rules of the practice directions for court which required counsel to set out all arguments for appeal in writing and limited the time for the address of counsel would affect the defendants interest. Although there was understanding that the practice directions would not be enforced rigidly, there was concern that it would be enforced without any flexibility in the future. Judges in some cases had also taken a very long time to deliver their judgements. The Chairman said that the chairman of the Hong Kong Bar Association (the Bar) had been in regular contact with the Chief Justice in respect of practice directions. She therefore asked the Clerk to write to the Bar relaying Mr HOs concerns and ask whether they wished to discuss these issues at a Panels meeting and if so, the Bar should be invited to provide a paper for members discussion.

Clerk

II. Date of next meeting and items for discussion

2. The next regular meeting was originally scheduled for Monday, 14 April 1997 at 4:30pm. As the Chairman would be out of town, members agreed to re-schedule the meeting for Tuesday, 15 April 1997 at 8:30am.

(Post-meeting note : As the Select Committee to Inquire into the Circumstances Surrounding the Departure of Mr LEUNG Min-yin from the Government and Related Issues will hold its next meeting on 15 April 1997 from 9:00am to 5:00pm, with the concurrence of the Chairman, the next meeting of the Panel has been re-scheduled for Wednesday, 16 April 1997 at 10:30am.)

3. Members noted Hon Albert HOs proposed resolution to adjust the sum awarded for bereavement damages under the Fatal Accidents Ordinance which had been issued vide LegCo paper No. CB(2) 1400/96-97. As the resolution would be proposed at the LegCo sitting on 16 April 1997 and since the agenda for the next regular meeting was anticipated to be heavy, members agreed that the proposed resolution would not be discussed by the Panel.

4. With reference to item four of the list of outstanding items for discussion, Ms Emily LAU suggested and members agreed that a written information paper should be requested on: (a) how the Commission of Inquiry into the Garley Building Fire had conducted its public hearings as far as the use of languages and the provision of interpretation facilities were concerned; and (b) the general principle in relation to use of languages to conduct public hearings of similar nature for members to consider whether the issue should be followed up at a future meeting.

Clerk

5. Mr David CHU suggested that standard in sentencing could be an agenda item for discussion in view of the public concern that sentences for some criminal cases had been unreasonably low. The Chairman asked and Legal Adviser explained that it was a matter for the Judiciary. The role of the legislature was to set the maximum penalty for specific offence and public opinion would be taken into account during the legislative process. Attorney General (AG) could apply for a review of sentence on the grounds that the sentence was not authorized by law, was wrong in principle or was manifestly excessive or manifestly nadequate. The Chairman supplemented that a judge would give regard to the maximum penalty in sentencing because it reflected the legislative intent. In this connection, Ms Emily LAU pointed out that the Chief Justice had occasionally met the Panel for exchange of views informally in the past. The Chairman reminded members that the acting Chief Justice had advised in his replied letter dated 6 December 1996 (issued under cover of LegCo Paper No. CB(2)695/96-97) that the Panel should raise matters concerning the conduct of a judge which gave rise to public concern with the Chief Secretary and he undertook to provide assistance if no interference with the independence of the Judiciary was involved. However, she agreed to write to the acting Chief Justice to reflect members wish for informal contacts. At Mr James TO suggestion, the Chairman asked the Clerk to write to the Attorney Generals Chambers: (a) requesting information on the number of applications for review of sentence made by the AG and the number of cases which resulted in heavier sentences on review in the past three years; and (b) inviting the Director of Public Prosecutions to attend the meeting. Mr Albert HO also pointed out that there were cases which aroused public concern during the past few years but the AG had decided not to proceed with the prosecution. The Chairman suggested that specific cases could be identified for the AG to respond.

Chairman
Clerk

6. After discussion, members agreed that the next regular meeting would discuss the following items:

Inspectorate Scheme of the Law Society of Hong Kong;
Progress on mutual legal assistance agreements; and
Sentences of serious crime cases.

III. The legislative programme for the remaining LegCo session

(LegCo Paper Nos. CB(2) 1441/96-97(01), (02) and (03))

Application of English Law Ordinance (Cap. 88)

7. Members noted that: (a) the Chairman had written to the AG on the progress of localization of laws with particular reference to those English laws applicable to Hong Kong under or through the Application of English Law Ordinance (Cap. 88) and the possible impact if the relevant legislation could not be enacted by 1 July 1997; and (b) the AG was preparing a reply to the letter. Legal Adviser explained that the Ordinance was to provide a legal basis for: (a) the common law and the rules of equity in force in England to be applied to Hong Kong so far as they were applicable to the circumstances of Hong Kong; (b) the application of English enactments to be in force in Hong Kong by the order of Her Majesty in Council; (c) a number of Acts to be applied to Hong Kong as set out in the Schedule to the Ordinance; and (d) the application of various enactments by the Parliament of United Kingdom. He pointed out that the localization of laws programme for the change of sovereignty as set out in LegCo Paper No. CB(2) 1441/96-97 (02) was to deal with the application of English enactments applying in Hong Kong by order of Her Majesty in Council. However, the Administration should explain to members whether and how the English Acts in the Schedule to the Ordinance would continue to be in force in Hong Kong after 1 July 1997. In this connection, Mr Paul TANG informed members that the Administration Wing was following up on the continued application of the Justices of the Peace Act 1361, the Habeas Corpus Act 1679 and the Habeas Corpus Act 1816 whereas the Attorney Generals Chambers was working on the Charities Procedure Acts 1812 and 1832. In response to Mr Albert HOs enquiry, Mr TANG said that the relevant policy branches would make a decision on whether individual acts were to be applied to Hong Kong after 1 July 1997 such as the Prescription Act 1832. Members were concerned that legislative work for the UK Acts in the Schedule which had to be localized might not be completed before 1 July 1997 if there was no overall co-ordination. Mr TANG pointed out that the Constitutional Affairs Branch was responsible for the overall co-ordination of the localization and adaptation of laws and that the AG would be replying to the Chairmans letter on Cap.88. The Chairman undertook to follow up further with the AG on the overall progress of localizing the UK Acts in the Schedule once his reply was received. At Mr Albert HOs suggestion, the Chairman also agreed to check with AG whether there were any UK Acts, currently in force in Hong Kong through the Application of English Law Ordinance, which would not be continued after 1 July 1997.

Chairman
Chairman/
Clerk

Bills to be introduced into LegCo under the localization of laws programme

8. Members noted the list of priority Government Bills to be enacted before 1 July 1997 and the checklist showing the progress and remaining scope of the localization of laws programme as set out in LegCo Paper Nos. CB(02) 1441/96-97(01) and (02) respectively. In this regard, Ms Emily LAU expressed grave concern that necessary legislative work might not be completed before 1 July 1997 in the light that the House Committee had set 9 April 1997 as the deadline for introducing Government Bills but many localization bills had yet to be introduced into LegCo. In response, Mr Paul TANG informed members that the Administration understood that there would be flexibility regarding the deadline and it would introduce the localization bills (proposals) under consultation in the Joint Liaison Group once agreement with the Chinese side had been reached (section C of the LegCo Paper No. CB(2) 1441/96-97(02) referred). The bill on transfer of sentenced persons to localize the Repatriation of Prisoners Act 1984 would be introduced into LegCo on 9 April 1997. Mr TANG added that the bill on Geneva Conventions was considered less urgent because the provisions of the Geneva Conventions Act 1957 had not been invoked since it was extended to Hong Kong in 1959 and the chances to invoke were very remote. Even if the relevant bill could not be enacted before 1 July 1997, legislation exercise for its application to Hong Kong could be initiated after 1 July 1997 as a period of legal vacuum in this respect was not so important. The Chairman requested a paper setting the purpose for each of the UK enactments in relation to the localization bills (proposals) under consultation in the JLG and the reasons to localize these enactments for members reference. In response, Mr TANG pointed out that the Constitutional Affairs Branch had already provided a paper setting out information on each of the localization proposals pending JLG agreement to the LegCo Panel on Constitutional Affairs. Mr James TO also asked and Mr TANG undertook to check with the relevant policy branches and report to members on the progress of necessary subsidiary legislation for the localization ordinances enacted. He added that the LegCo Panel on Constitutional Affairs had all along been following up on the localization of laws programme.

Adm

(Post-meeting notes : A note on "Localization of Law" provided by the Constitutional Affairs Branch to the LegCo Panel on Constitutional Affairs has been issued to members vide LegCo Paper No. CB(2)1649/96-97 after the meeting.)

IV. General principles of the jury system and its implications on the legal system in Hong Kong

(LegCo Paper Nos. CB(2) 1040/96-97 and CB(2) 1449/96-97)

9. The Chairman reminded the meeting that arising from the discussion on the proposed amendments to the Jury Ordinance (Cap. 3) at a special meeting on the use of Chinese in court held on 25 January 1997, members had agreed to discuss the general principles of a jury system and its implications on the legal system in Hong Kong (including related issues such as discretion of AG in determining the venue for trial and desirability to extend the jury system to District Court). In this connection, Ms Emily LAU expressed dissatisfaction that the elitist system of jury would continue even after the Jury Ordinance was amended which was against the important essence of jury trial, that was, judgement by ones peers. Mr Paul TANG responded that there was historical reason for setting a minimum educational standard by administrative measures for jurors because only English was used in courts. It was agreed, after discussion with the Judiciary, that a gradual approach should be adopted in enlarging the list of potential jurors with a view to reaching the long-term goal that persons who were conversant with Chinese only could be qualified as potential jurors (so long as they met other qualifications for jurors in the Jury Ordinance). He cautioned that experience in using Chinese in courts was still fairly limited and the majority of cases in the High Court would very likely be tried in English at the early stage. It was therefore advisable to have regard to the practical needs and use administrative measure to set educational qualifications for potential jurors to ensure that there would be enough jurors for trials carried in English.

10. In response to the Chairman, Mr John MULLICK said that there were many inter-connecting factors in implementing use of Chinese in courts such as Judicial manpower. If there were sufficient potential jurors, the Bar had no objection to extend the jury system to the District Court particularly in view of the fact that the maximum penalty for cases to be tried in the District Court was seven years imprisonment. The Chairman further asked whether to include more persons who were conversant with Chinese only in the list of potential jurors by lowering the educational qualifications would be feasible in view of the fact that one-third of the cases in District Court were tried in Chinese. Mr MULLICK cautioned that many "local" lawyers in the District Court could only use English in forensic proceedings and many people of different nationalities were tried in the District Court.

11. To facilitate future discussion of the issue, members requested the Administration to provide a paper setting out: (a) the comparison of the jury system in Hong Kong with that of the United Kingdom; (b) the reasons for the differences; (c) the reasons for not extending the jury system to the District Court and the Administrations opinion if extending the jury system to the District Court was made an ultimate goal; and (d) the AGs existing power in determining the venue for trial. In this connection, Mr Stephen WONG cautioned that desirability to extend jury system to the District Court was a law reform issue with far-reaching impact. It would need much longer time to prepare such a paper. The Chairman therefore suggested Mr WONG to inform the Panel once the paper was available. The Chairman then thanked representatives of the Administration and the Bar for attending the meeting and also invited the Bar to comment on the AGs discretion in determining the venue for trial.

Adm
the Bar

V. Follow-up on the Judge CAIRD case

12. The Chairman reminded members that it was agreed at the last meeting that members should have advance notice of Mr James TOs proposed motion to condemn the Governor for the way he handled the Judge CAIRD case. Since Mr TO had not put forward his motion in writing and intended to replace it by another proposal, the meeting would therefore not pursue his proposed motion. In this connection, the Chairman asked and Legal Adviser explained that the words "admonish" and "reprimand" had been used in Standing Order 65A (Sanctions relating to Interests) but the word "condemn" had not been used in the Standing Orders of the LegCo. The Chairman therefore suggested that a study should be conducted on how these words were to be used. The Chairman further asked and Legal Adviser responded that the practice and procedure of a Panel should be determined by that Panel, subject to other Standing Orders governing LegCo panels. The Panel could follow up the Judge CAIRD case as a matter arising from the last meeting even though the proposed motion would not be proceeded with.

13. Mr James TO explained that the purpose of his revised proposal was to exert pressure on the Governor to order a full and open inquiry into Judge CAIRD case. He was strongly dissatisfied that the Governor had decided not to proceed with any further action and little information regarding the basis of his decision that a judicial tribunal should be appointed had been made public. The way the case was handled had failed to dispel any doubts about the independence of the Judiciary in Hong Kong. In this regard, Mr Martin LEE asked and Legal Adviser explained that it was clear that independence of the Judiciary was to ensure that judicial officers would act independently, without being subjected to any outside interference, in the course of executing their judicial functions. However, there was no clear delineation, without compromising the constitutional principles of separation of powers of the executive, legislature and the judiciary in any way, as to the extent judicial officers conduct should be independent from public scrutiny, particularly if their conduct was involved or when their behaviour was indirectly related to their judicial functions only. The Chairman then asked whether it was proper for the Panel to discuss confidence in the judicial system with the Governor who was the head of the executive branch of the Government, having regard to the constitutional principles of separation of powers. Legal Adviser opined that confidence in the judicial system, which was members main concern, was different from judiciarys independence. The Governors agreement to answer questions on the Judge CAIRD case during his Question and Answer session in LegCo demonstrated that he was accountable in this respect. However, it was a matter for the Panel and the public to judge what the Governor should do or how much relevant information he should release in discharging his accountability without undermining the independence of the judiciary.

14. Mr Martin LEE asked whether the LegCo could request the Acting Chief Justice to release information relating to his findings about the Judge CAIRD case. Legal Adviser explained that although the LegCo was empowered by the Legislative Council (Powers and Privileges) Ordinance (Cap. 382) to order witness to attend and to produce papers before LegCo, any person could seek immunity from the order on the ground of public interest. He undertook to prepare a legal opinion as to whether the LegCo could request the Acting Chief Justice to release information relating to his findings which were conducted in an internal, confidential and informal manner. Mr James TO also suggested Legal Adviser to provide information on the monitoring and control mechanism in implementing the constitutional principles of separation of powers in overseas jurisdictions. In this regard, the Chairman reminded members that the Panels terms of reference had been drawn up in such a way to enable the Panel to perform the role of monitoring the system of administration of justice effectively without undermining the independence of the Judiciary. She therefore cautioned that it was of paramount importance not to set any precedent for a legislature to exert political pressure on the judiciary directly.

LA
LA

15. After discussion, Mr James TO proposed that the Panel should request the Governor to meet with members to discuss the contents of the letter of 12 September 1996 from the Acting Chief Justice which formed the basis of his earlier decision that a judicial tribunal should be appointed under Article XVIA(6) of the Letters Patent to investigate whether Judge CAIRD should be removed from office for misbehaviour and to explain the reasons for his subsequent decision not to order an inquiry of any kind into the matter. Ms Emily LAU and Mr Martin LEE indicated their supported for his proposal. The Chairman therefore agreed to write to the Governor on behalf of the Panel and would inform members of any development accordingly.

(Post-meeting note : The Chairmans letter dated 13 March 1997 to the Governor and the Governors reply dated 19 March 1997 have been issued to members vide LegCo Paper Nos. CB(2)1542/96-97 and 1623/96-97 respectively.)

Chairman
/Clerk

VI. Any other business

16. Members noted that the Legislative Council Commission had decided that the House Committee should consider bids for funds for Members overseas duty visits and any proposed overseas duty visits for the months of April, May and June 1997 should be made by 17 March 1997 and they agreed on a nil return for the Panel.

17. There being no other business, the meeting ended at 6:30 pm.

LegCo Secretariat
1 April 1997

* other commitments

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