PLC Paper No. LS 18

Paper for the House Committee Meeting
of Provisional Legislative Council
on 22 August 1997

Legal Service Division Further Report on
Legal Services Legislation (Miscellaneous Amendments) Ordinance 1997
(94 of 1997) (Commencement) Notice 1997 (L.N. 413 of 1997)

Members may recall that the above Commencement Notice purports to rectify a problem caused by a former Commencement Notice made by the former Attorney General (our previous report LS14 refers). At the House Committee on 15 August 1997, Members deferred a decision on the present Commencement Notice, pending a further report from the Legal Service Division.

2. We have asked the Administration to comment on :

1. whether the commencement notice issued by the former Attorney General is still valid;
2. whether the Secretary for Justice may appoint an earlier date in the present Commencement Notice? If not, is there any other means in law to make an earlier date the commencement date for the relevant provisions?
3. how many agreements for sale and purchase are affected during the period between the two commencement dates?
4. What would be the effect of the two Commencement Notices on the agreements entered into between 30 June 1997 to 7 August 1997?

3. The Administration reply, in the same order, is summarized as follows:

1. Doubts have been cast on the validity of the first Commencement Notice;
2. The Secretary for Justice has considered that the most appropriate action has been taken;
3. The Department of Justice does not have figures on the number of agreements affected.
4. The rights and obligations of the parties to a contract entered into during the interim period will depend primarily on the terms of the agreements they have signed. Any dispute arising therefrom will ultimately be a matter for the courts to decide.

---- Copies of the two letters from the Administration are attached for Members�reference.

4. According to the Interpretation and General Clauses Ordinance (Cap. 1), it would seem that the former Attorney General could not exercise the power to appoint a commencement date under the relevant Ordinance before the Ordinance itself was published in the Gazette. Accordingly there is a doubt whether the first Commencement Notice has any effect in law.

5. On the other hand, there is also authority which suggests that the Secretary for Justice could not make a Commencement Notice naming a date earlier than the date of the Notice itself.

6. As the power of the Secretary for Justice to appoint an earlier date is doubtful, it follows that it is also doubtful if the PLC may make amendments to the Commencement Notice by appointing an earlier date since any PLC amendment should be consistent with the power of the Secretary for Justice under section 34 of Cap. 1. It is also apparent that a PLC amendment to appoint an earlier date in the present Commencement Notice may not achieve the purpose of avoiding legal uncertainties in relation to the agreements entered into in the interim period. The Department of Justice is trying to ascertain the number of cases, if any, which are affected. At this stage, there seems to be no immediate action required to be taken by the PLC. Should Members wish to follow-up this matter, it could be referred to the Panel on Administration of Justice and Legal Services.

Prepared by

Ho Ying-chu, Anita
Assistant Legal Adviser
Provisional Legislative Council Secretariat
20 August 1997