PLC Paper No. LS 97
Paper for the House Committee Meeting
of the Provisional Legislative Council
on 13 February 1998
Legal Service Division Report on
Legal Practitioners (Amendment) Bill 1998
Object of the Bill
To provide for the appointment in Hong Kong of notaries public.
PLC Brief Reference
2.PLC Brief DoJ ADV 5040/4C issued by the Department of Justice and dated 26 January 1998.
Date of First Reading
3.11 February 1998.
Comments
4.Before 1 July 1997, the appointment of notaries public was made by the Archbishop of Canterbury. This system of appointment has since lapsed and it has not been possible to appoint new notaries public. The Hong Kong Reunification Ordinance however provides for notaries public appointed prior to 1 July 1997 to continue to practise as such.
5.An attempt was made to localise the appointment of notaries public by the introduction of the Legal Practitioners (Amendment) Bill 1996 in February 1996. That Bill was withdrawn after a committee stage amendment proposed by the Bills Committee was passed providing for the compulsory membership of notaries public with the Hong Kong Society of Notaries. The Administration considered that such compulsory membership would probably infringe the right to freedom of association under Article 22 of the International Covenant on Civil and Political Rights.
6.The Bill now seeks to put in place a local appointment system which is supported by a self-regulatory system similar to that of the two existing legal professional bodies. Compulsory membership with the Society will be required for all practising notaries but unlike the previous Bill, the Society will now be given a regulatory and disciplinary role similar to that of the Law Society and Bar Association. For example, it will be empowered to issue practising certificates to notaries and be responsible for receiving complaints about conduct of notaries for consideration of disciplinary action by a Tribunal. The Administration is of the view that the increased role of the Society should render the restriction on the notaries�freedom of association justifiable.
7.The appointing authority will be the Chief Justice, who will appoint a Notaries Public Disciplinary Tribunal Panel from which the Notaries Public Disciplinary Tribunal is to be formed. This is again modelled on the disciplinary system for the existing legal profession and differs from the proposal under the 1996 Bill, which makes the Chief Justice primarily responsible for the discipline of notaries.
8.The provisions with regard to the qualification and admission of notaries remain largely the same as those proposed by the 1996 Bill. Only solicitors with 7 years�qualification and who passed a notarial examination will be eligible for appointment.
Public Consultation
9.According to the PLC Brief, the Hong Kong Society of Notaries, the Law Society and the Bar Association all support the Bill in principle upon consultation.
Consultation with Panel
10.No prior consultation with any Panel has been conducted.
Conclusion
11.Unlike the previous Bill withdrawn after much controversy, the present Bill has been made to model closely on the statutory framework governing solicitors and barristers. This should be able to address the main concern over the previous Bill.
12.The legal and drafting aspects are in order. Members may wish to consider whether there are any issue or matter that they may need to discuss or examine.
Prepared by
CHEUNG Ping-kam, Arthur
Assistant Legal Adviser
Provisional Legislative Council Secretariat
10 February 1998
