Information Note for the
LegCo Panel on Administration of Justice and Legal Services
Administration of Justice
(Miscellaneous Provisions) (No. 2) Bill 1996

INTRODUCTION

This paper aims to brief members of the Panel on the contents of the Administration of Justice (Miscellaneous Provisions) (No. 2) Bill 1996. Subject to the approval of the Executive Council, it is envisaged that this Bill will be introduced into the Legislative Council in December of this year.

BACKGROUND

2. This Bill is proposed by the Attorney General, and is intended to cover "minor, technical and non-controversial" amendments to the Laws of Hong Kong. Bills with a similar purpose and title have been enacted in recent years, as an efficient way of effecting minor improvements to existing legislation.

AMBIT

3. Items to be included in this Bill cover a wide range of subjects. Some of the items bear a more definite policy content than others. A large number involve purely textual amendments. They were identified either by the Legal Department or other Policy Secretaries. The main proposals are described below.

Transfer of Powers from the Governor in Council

4. As part of the ongoing exercise to streamline the work of the Governor in Council, Policy Secretaries were requested by the Chief Secretary on 16 January 1991 to review all legislation under their respective purview to identify minor powers which were suitable for transfer from the Governor in Council to specified authorities.

5. The Secretary for Health and Welfare ("SHW") now proposes that the power to make certain regulations or orders under the following Ordinances should be transferred from the Governor in Council to SHW. Those regulations and orders are not considered sufficiently important to merit the attention of the Governor in Council.

  1. Public Health and Municipal Services Ordinance (Cap. 132);
  2. Pesticides Ordinance (Cap. 133);
  3. Mental Health Ordinance (Cap. 136);
  4. Dentists Registration Ordinance (Cap. 156);
  5. Midwives Registration Ordinance (Cap. 162);
  6. Nurses Registration Ordinance (Cap. 164);
  7. Protection of Children and Juveniles Ordinance (Cap. 213);
  8. Reformatory Schools Ordinance (Cap. 225);
  9. Undesirable Medical Advertisements Ordinance (Cap. 231);
  10. Child Care Centres Ordinance (Cap. 243);
  11. Probation of Offenders Ordinance (Cap. 298);
  12. Animals (Control of Exemptions) Ordinance (Cap. 340);
  13. Supplementary Medical Professions Ordinance (Cap. 359); and
  14. Community Service Orders Ordinance (Cap. 378).

6. The Secretary for Trade & Industry ("STI") proposes that the Travel Agents Ordinance (Cap. 218) be amended to transfer from the Governor in Council to the STI the regulation-making powers under section 50 of the Ordinance, except the power to prescribe fees under section 50(g). Section 50 creates the power amongst other things, to regulate applications for and renewal of licences; prescribe forms for the purposes of that Ordinance and prescribe particulars to be supplied in connection with an application for a licence; provide for the keeping and maintenance of the travel agents register; and prescribe fees for the licensing of persons as travel agents and relating to the register. It is not necessary to transfer the power to prescribe fees under section 50(g) which will remain with the Governor in Council

Transfer of Statutory Appeals Against Administrative Decisions to the Administrative Appeals Board

7. The Administrative Appeals Board was established in 1994 for the purpose of hearing appeals against administrative decisions involving matters of a relatively minor nature which were previously heard by the Governor, the Governor in Council, or other authorities. This has given members of the Executive Council more time to focus on more important policy and strategic issues, and provides a more open and uniform appeal procedure.

8. In accordance with the policy outlined in paragraph 7, SHW has identified certain statutory appeals under the following Ordinances as suitable for transfer to the jurisdiction of the Administrative Appeals Board:-

  1. Hospitals, Nursing Homes and Maternity Homes Registration Ordinance (Cap. 165),
  2. Medical Clinics Ordinance (Cap. 343),
  3. Human Organ Transplant Ordinance (Cap. 465); and
  4. Pesticides Ordinance (Cap. 133)

These appeals relate to the registration of hospitals, maternity homes; and clinics; refusal to grant approval for a human organ transplant; and registration and control of pesticides. We propose that those statutory appeals be transferred to the Administrative Appeals Board.

Bringing the Marriage Ordinance into line with the Bill of Rights Ordinance

9. Section 14 of the Marriage Ordinance (Cap. 181) is inconsistent with the Hong Kong Bill of Rights Ordinance (Cap. 383) as being discriminatory on the ground of sex. Under this provision, only fathers may consent to the marriages of any of their children who require such consent. A mother may only give consent where the father is either dead or insane. We propose to amend section 14 of Cap. 181 so that if either party to an intended marriage is 16 or over, but under 21, he or she will need the consent of the person or persons specified in the new Third Schedule.

10. The opportunity is taken to amend the Third Schedule to Cap. 181 to provide a more comprehensive list of circumstances in which consent to a marriage is required. Where consent is required, the Schedule indicates by whom the consent must be given.

Amendments to the Post Office Ordinance to replace the "On Her Majesty's Service" mark

11. At its meeting on 12 June 1995, the Executive Council decided that the "ON HER MAJESTY’S SERVICE" ("OHMS") mark on Government envelopes should be replaced by "ON GOVERNMENT SERVICE" ("OGS") before 1 July 1997. It is necessary to ensure that Government mail bearing the OGS mark enjoys the same protection and privileges as those bearing the OHMS mark as provided in the Post Office Ordinance (Cap. 98). It is therefore proposed to amend sections 22, 31(1) and 32(1)(m) of Cap. 98 by adding OGS after OHMS whenever the latter mark appears.

Amendments to the Legal Practitioners Ordinance to permit Taxation of Foreign Lawyers’ Bills

12. Sections 67, 68 and 69 of the Legal Practitioners Ordinance (Cap. 159) deal with the taxation of solicitors' bills. Any person who is a party chargeable with a solicitor’s bill or any person, not being a party chargeable with a solicitor’s bill but who is or was liable to pay such bill, may apply to the Court for an order for taxation of the bill. The Court will then determine what the appropriate charge should be.

13. The current provisions only apply to taxation of a solicitor’s bills. However, with the enactment of Part IIIA of Cap. 159 in July 1994, foreign lawyers who practise foreign laws in Hong Kong are subject to the provisions of Cap. 159 and relevant professional rules. It would be in the public interest to provide for the taxation of a foreign lawyer’s bill in the same way as taxation of a solicitor's bill. It is therefore proposed to amend Cap. 159 to so provide.

Non-existence of Official Members of the Legislative Council

14. Since the Legislative Council Election in 1995, there have been no official members of the Legislative Council. We therefore propose to amend:-

  1. the Legislative Council Commission Ordinance (Cap. 443);
  2. the Po Leung Kuk Ordinance (Cap. 1040); and
  3. the Tung Wah Group of Hospitals Ordinance (Cap. 1051)

    by removing references to those members.

Amendments to the Births and Deaths Registration Ordinance and the Marriage Ordinance in respect of record-keeping

15. It is proposed that the Births and Deaths Registration Ordinance (Cap. 174) and the Marriage Ordinance (Cap. 181) should be amended to legalise the storage of births, deaths and marriage records by microfilm and other forms of electronic media.

Miscellaneous Amendments

16. Various other amendments are proposed which carry no or little policy content. Some of them are proposed to rationalize and improve minor aspects of the Laws of Hong Kong. Others involve purely textual amendments. Details of these can be found in the attached Schedule of Amendments which are extracted from the Drafting Instructions.

LEGAL POLICY DIVISION
ATTORNEY’S GENERAL CHAMBERS
SEPTEMBER 1996

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