PLC Paper No. CB(2) 109
Ref: CB2/SS/1/97

Paper for the House Committee meeting
on 8 August 1997

Report of the Subcommittee on
Hong Kong Court of Final Appeal Rules and
Hong Kong Court of Final Appeal Fees Rules

Purpose

This paper reports on the deliberations of the Subcommittee on the Court of Final Appeal Rules and the Hong Kong Court of Final Appeal Fees Rules.

Background

2. The two items of subsidiary legislation, published as Legal Notices Nos. 384 and 385 of 1997, were tabled at the Council meeting on 9 July 1997. They were made by the Court of Final Appeal Rules Committee (the CFA Rules Committee) to tie in with the coming into operation on 1 July 1997 of the Hong Kong Court of Final Appeal Ordinance (Cap. 484). Their purposes are to prescribe the procedures and the fees payable for appeals in the Hong Kong Court of Final Appeal.

3. The deadline for amendment to these two sets of rules was 23 July 1997 (or 20 August 1997 if extended by resolution). At the House Committee meeting on 11 July 1997, Members agreed to form a subcommittee to study the two items. To allow more time for scrutiny of the rules, Dr Hon LEONG Che-hung, Chairman of the House Committee, moved a motion at the Council meeting on 23 July 1997 to extend, under section 34(4) of the Interpretation and General Clauses Ordinance, the period for amending the subsidiary legislation to the meeting of 20 August 1997.

The Subcommittee

4. The Subcommittee met on 21 July 1997 and Hon Ronald ARCULLI was elected chairman. A membership list of the Subcommittee is at the Appendix.

Deliberations of the Subcommittee

5. At the meeting with representatives of the CFA Rules Committee and the Judiciary Administrator Office on 21 July 1997, members were interested in knowing to what extent the Appeals Rules had preserved the previous rules governing appeals to the Judicial Committee of the Privy Council and the reasons for any departure. They noted that Part VII of the Appeal Rules requires the appellant to file his Case before the respondent. They were informed that this had been designed as an improvement on the previous rules, which did not require the filing of the Cases of the appellant and the respondent in any particular order. Members asked for further information regarding the deliberations of the CFA Rules Committee on the comparative merits of the two procedures and on the improvement perceived to be achieved by the new requirement.

6. In response, the Judiciary Administrator has pointed out that Rules 65 and 66 of the Judicial Committee Rules provide for the lodging of the case. After lodging the case, each party shall give notice to the other party. After both parties have lodged their cases with the Registrar of the Privy Council, a meeting will be arranged by the Registrar for the simultaneous exchange of the cases. The Rules were made a long time ago and the last round of amendment was made in 1982 which amended the 1957 version of the Rules. In agreeing the sequential exchange of case, the CFA Rules Committee was of the view that such a procedure would minimize unnecessary work in that the respondent need only to deal with the points raised by the appellant in his case instead of all the possible issues that may be raised by the appellant. Sequential exchange will therefore save time and expenses for the respondent.

7. Members were also concerned over the time limits specified in Rules 32 and 33 of the Appeal Rules, giving 14 days for the filing of Part A of the Record and only 7 days for the sending of a proposed index for Part B to the respondent. They were worried that 7 days might not be sufficient in certain circumstances, e.g. in complex cases or where there was a change of solicitor or counsel. They noted in this regard that the Judicial Committee Rules only requires that the appellant shall without delay take all necessary steps to have the Record transmitted to the Registrar.

8. The Judiciary Administrator has explained that Rule 33 refers to the appellant index for the Record. In practice this index should be prepared well in advance, when the appellant is drawing up his case. While it is reasonable to say that the content of the respondent case would have a bearing on the documents to be included in the index, it can be expected that most of these documents would have already been laid before the court below. The index in question is just a proposed index and the two parties would still need to agree on the documents to be included in the Record. If there are difficulties in meeting the time periods specified in the Ordinance, a party can apply to the Court under Rule 70 for an extension of time.

9. The Judiciary Administrator has pointed out the requirement to submit a proposed index under Rule 33 is new. Members of the CFA Rules Committee have agreed to the current time limits taking into account their professional experience. There is always scope for improving the procedures and reviewing the time frame after the Court of Final Appeal has been in operation for a reasonable period of time

10. As the Rules would affect directly all legal practitioners, the Subcommittee also asked for confirmation that both the Hong Kong Bar Association and the Law Society of Hong Kong have been consulted and the Rules are agreeable to them.

11. In response, the Judiciary Administrator has informed members that the CFA Rules Committee includes two barristers and two solicitors nominated by the Hong Kong Bar Association and the Law Society of Hong Kong respectively. This is a well established arrangement which has worked well in relation to the High Court Rules and the District Court Rules. In the context of the CFA Rules, the representatives of the two professional bodies have given their approval of the Rules in their capacity as representatives. The Judiciary has not received any comments on or any objection to the Rules since their publication on 1 July 1997.

12. The Subcommittee also raised a number of other points for clarification, including the lack of provision on the use of languages in both the principal ordinance and the Appeals Rules and whether Rule 3 (Application to HKSAR Government) of the Fees Rules is necessary.

13. As regards the use of Chinese in the Court of Final Appeal, the Judiciary Administrator has pointed out that section 5 of the Official Languages Ordinance states that subject to section 6, a 衠udge may use either or both of the official languages in any proceedings..� As judge is defined in Cap. 1 (as amended by section 50 and Item 1 of the schedule to the Hong Kong Court of Final Appeal Ordinance) to include, inter alia, the Chief Justice of the Court of Final Appeal and a judge of the Court of Final Appeal, there is no restriction on the use of Chinese in the Court of Final Appeal.

14. Rule 3 of the Fees Rules provides for the application of the Fees Rules to the proceedings by or against the Government of the HKSAR. The Judiciary Administrator has invited members�attention to section 66 of the Interpretation and General Clauses Ordinance (Cap. 1) which, when read in conjunction with the Reunification Ordinance, provides that no Ordinance shall be binding on the HKSAR Government unless it is therein expressly provided or unless it appears by necessary implication that the HKSAR Government is bound thereby. Otherwise it would be doubtful whether the Fees Rules apply to the proceedings involving the Government. This rule mirrors Rule 4 of the Supreme Court (High Court) Fees Rules and the Judiciary is not aware of any difficulty arising from the construction of that provision.

15. The legal adviser to the Subcommittee has raised a few drafting points for the Judiciary consideration. After reviewing those points, the Judiciary Administrator has informed the Subcommittee that they will be proposing a number of technical amendments. The proposed amendments will be circulated to Members for information once they are available.

Recommendation

16. The Subcommittee recommends that apart from the technical amendments mentioned in paragraph 15 above, no other amendments to the two sets of Rules are necessary.

Advice Sought

17. Members are invited to note the deliberations of the Subcommittee and support the recommendation in paragraph 16 above.

Provisional Legislative Council Secretariat
5 August 1997