Panel on Administration of Justice and Legal Services (Minutes) 8 Sept 97

Provisional Legislative Council

PLC Paper No. CB(2)406
(These minutes have been
seen by the Administration
and cleared with the Chairman)

Ref : CB2/PL/AJLS

Panel on Administration of Justice
and Legal Services

Minutes of Meeting held on Monday, 8 September 1997 at 4:30 pm in Conference Room A of the Legislative Council Building

Members present :

Hon Kennedy WONG Ying-ho (Deputy Chairman)
Hon WONG Siu-yee
Hon Mrs Elsie TU, GBM
Hon CHEUNG Hon-chung
Hon TSANG Yok-sing
Hon YEUNG Yiu-chung
Hon IP Kwok-him
Hon CHOY So-yuk

Members asbent :

Hon Ambrose LAU Hon-chuen, JP (Chairman)
Hon David CHU Yu-lin
Hon Ronald ARCULLI, JP
Hon Bruce LIU Sing-lee
Hon Mrs Miriam LAU Kin-yee, JP

Public officers attending :

Item III

Judiciary Administrator's Office

Ms Alice TAI: Judiciary Administrator
Mr Keith BATSTONE: Assistant Director of Management Services (Judiciary)

Item IV

Department of Justice

Mr Peter H H WONG: Acting Senior Assistant Solicitor General
Mr Wesley W C WONG: Senior Government Counsel (Secretary for Justice's Office)

Item V

Administration Wing of the Chief Secretary for Administration's Office

Ms Cecilia YEN

Deputy Director of Administration (Atg)

Department of Justice

Mr D J MORRIS

Deputy Law Draftsman (Legislation)

By invitation :

Mr Robin EGERTON: Member
Mr Tony HUNG: Member
Mrs Sharon MELLOY: Member
Ms Joyce WONG: Secretary

The Hong Kong Family Law Association

Miss Sharon Andrea SER: Chairman
Mrs Amy Yuen King LIU The Family Mediation Committee
Mr Robin EGERTON
Mrs Robyn HOOWARTH
Mr Timothy LEUNG
Ms Rita CHIU
Ms Jane PENDLETON
Ms Sarah WARREN

Clerk in attendance :

Ms Doris CHAN: Chief Assistant Secretary (2)4

Staff in attendance :

Mr LEE Yu-sung: Senior Assistant Legal Adviser
Miss Anita HO: Assistant Legal Adviser 2
Mr Arthur CHEUNG: Assistant Legal Adviser 5
Ms Joanne MAK: Senior Assistant Secretary (2)4

Mr Kennedy WONG chaired the meeting on behalf of Mr Ambrose LAU who had to chair a bills committee meeting.

I.Confirmation of minutes of meeting held on 22 July 1997 and matters arising

(PLC Paper No. CB(2)201)

2.The minutes of the meeting held on 22 July 1997 were confirmed.

II.Date of next meeting and items for discussion

3.Members agreed to discuss the following items at the next meeting scheduled for Monday, 13 October 1997 at 4:30 pm-

general principles of the jury system and its implications on the legal system in Hong Kong; and
adequacy of provisions relating to the use of Chinese in Courts.

The Chairman would seek Mr Ambrose LAU's agreement to the above proposed items.

(Post-meeting note : due to the need of the Secretary for Justice to conduct policy briefing at the next meeting, only item(b) would be discussed.)

III.Relocation of Family Court
(PLC Papers Nos. CB(2)240(01)-(02), CB(2)254(01) and CB(2)260)

4.At the invitation of the Chairman, Ms Alice TAI briefed members that back in March 1994, family practitioners had expressed dissatisfaction with the facilities of the Family Court which was then located in the Wanchai Law Court Building. One of the criticisms was that the former Family Court should not have been located next to criminal courts and have shared entrance and exit with them. Then prompted by the shortage of space at the District Court, the Family Court was relocated from the Wanchai Law Court Building to the Supreme Court in April 1995. However, the Judiciary Administrator's Office had then made it clear that the removal was intended to be a temporary arrangement only and there was no plan for the Family Court to be located in the Supreme Court for good.

5.With reference to the paper issued by the Judiciary Administrator's Office (CB(2)240(02)), Ms Alice TAI summarized that the following improvements had been made to the Family Court over the past three years having regard to the comments received from representative bodies of family practitioners in March 1994 -

A fourth Judge was deployed to the Family Court in April 1995. Following the enactment of the Matrimonial Causes (Amendment) Ordinance 1995 in June 1996, a fifth Judge had also been deployed to the Family Court for the most part of the year to deal with the increased workload. The Judiciary would propose to make permanent the post of the fifth Judge later in the financial year.
A working group chaired by His Honour Judge Hartmann was set up in November 1994 to review the practice and procedures of the Family Court. Pursuant to the recommendations of the working group, various procedural changes had been made to the Family Court Registry. Amendments to the Matrimonial Causes Rules were also being prepared to provide a new set of procedures in respect of uncontested divorces.
In response to the request for better facilities at the Family Court put forward by the Hong Kong Bar Association (the Bar), the Law Society of Hong Kong (the Law Society) and the Family Law Association (FLA) in May 1994, the Judiciary had subsequently relocated the Family Court to the Supreme Court with improved facilities.

6.Ms Alice TAI stressed that, in drawing up the current plans for the Family Court facilities, she had taken into full account the views expressed by family practitioners in May 1994. In particular, the following had been taken note of -

the Family Court should be located away from criminal courts and Coroner's Court; and
consultation rooms and children's areas should be provided at the Family Court.

Ms Alice TAI clarified that, barring any substantial change in the legal policy resulting in separation of the Family Court from the District Court, the proposed new location for the Family Court in the Wanchai Law Courts Building would be a permanent one. She explained that there was a need to maintain flexibility in the design of physical facilities for courts, and thus the retention of the corridors for defendants on the first floor (1/F) was necessary to allow for future flexibility. However, Ms TAI assured that she would keep in view the workload of the Family Court and would increase the number of Judges and expand the Family Court Registry as and when necessary. She explained that the Family Court, while to be located in the Wanchai Law Courts Building, would continue to develop as a self-contained unit.

7.Mr CHEUNG Hon-chung noted from the submission by the Family Law Committee of the Law Society (CB(2)240(01)) that family practitioners had been advised by the Judiciary Administrator's representative that there would not be alteration done to the existing layout of 1/F of the Wanchai Law Courts Building. He queried if the Judiciary Administrator's Office had really intended to make the proposed location for the Family Court in the Wanchai Law Courts Building a permanent one. In response, Ms Alice TAI re-confirmed the decision and added that a budget of $17 million had been set aside for the relevant renovation cost.

8.Mr CHEUNG Hon-chung expressed support to the views elaborated by deputation in their submissions that the Family Court should be refurbished in a way to meet its needs and be provided with the necessary facilities. In reply, Ms Alice TAI shared Mr CHEUNG's view that much improvement could be made and pointed out that the Judiciary Administrator* Office had actually drawn up a detailed renovation plan for the Family Court. She invited Mr CHEUNG to make reference to paras. 12 to 19 of the Paper No. CB(2)240(02).

9.In response to Mr CHEUNG Hon-chung's comment that the Judiciary Administrator's Office had submitted its information paper too late to allow adequate time for members to study it, Ms Alice TAI pointed out that the English and Chinese versions of the paper were actually provided to the PLC Secretariat on 3 and 5 September 1997 respectively. The Chairman supplemented that the English and the Chinese paper had already been issued to members a few days ago, and that the paper tabled at the meeting was only the Chinese translation of a submission from FLA.

10.Mr Robin Egerton referred to the large increase in the number of divorces in the past few years and argued that there was a need to improve the facilities of the Family Court to cope with the substantial increase in caseload. While he acknowledged that the Family Court facilities had been greatly improved with the efforts made by the Judiciary Administrator's Office, he pointed out that the Family Court was inadequate to meet its strategic requirements. He said that the Law Society was also concerned that the move back to the Wanchai Law Courts Building was a piece-meal approach in addressing the problem. He was worried that the piece-meal approach adopted in handling the issue would be endorsed at this meeting as a flexible arrangement.

11.Mr Robin Egerton further elaborated that the commitment of resources to the Hong Kong Court of Final Appeal (CFA) was some $44 or $45 million, which was more than double that of the Family Court. He considered that the same level of resources should be expended on the Family Court. He also criticized that at present many cases concerning the interests of children which should be dealt with immediately were only partly heard and adjourned. He suggested there should be a strategic review and a high-powered working party set up to look at the Family Court system and to explore incorporation of facilities required for mediation.

12.Miss Sherman SER said she was glad to hear that the move was not a temporary one although she had earlier heard the contrary. Miss SER said that she appreciated the efforts made by the Judiciary Administrator's Office towards improving the Family Court, but that she failed to see why it had to be relocated back to Wanchai to join the rest of the District Court. She further elaborated that if the Court had really to be located in Wanchai, there should be a purpose-built building for the Court. She urged the Judiciary Administrator* Office to adopt a positive and proactive approach and set up a working party to consult the representative bodies regarding the proposed relocation.

13.In response to Mr TSANG Yok-sing's enquiry, Ms Alice TAI explained that the main differences between the existing layout of the Family Court in the High Court Building and the proposed one in the Wanchai Law Courts Building included-

the Family Court after relocation would not be sharing with any other courts or court registries on the same floor;
space would be devoted to children's areas, subject to the Judiciary being satisfied by practitioner groups and/or SWD that there would be adequate arrangements regarding child safety and supervision;
consultation rooms would be provided;
water fountain and vending machines would be provided;
softer decor would be adopted; and
subject to availability of resources, there would be lifts servicing exclusively the three floors where the Family Court was to be located.

14.Mr TSANG further asked whether the Judiciary's decision of relocating the Family Court was only prompted by the shortage of space at the High Court Building and whether it had any long-term plan for the Family Court. In reply, Ms Alice TAI explained that the Judiciary had always been reviewing the development of individual courts. Relocation of courts was done on a need basis such as the Labor Tribunal and the Lands Tribunal. Given the scarcity of land in Hong Kong, she doubted whether the Government would allocate any land for construction of the Family Court which at most would only be a four-storey building. She further briefed members and representatives that she had not proceeded with a proposal of converting a deemed monument in the Southern Kowloon to accommodate the Family Court having considered its location and restrictions in layout.

15.In response to Mr R. EGERTON's remark that the budget for the construction of CFA had far exceeded that for the Family Court, Ms Alice TAI explained that expenditure incurred with the conversion of the former French Mission Building, which was a declared monument, had accounted for the budgetary difference. Ms TAI further stressed that the budget for the Family Court was drawn up entirely based on practical needs. She assured that she was committed to providing a Family Court with all the necessary and up-to-standard facilities.

16.Mrs Elsie TU recalled that the subject had actually been discussed by the former AJLS Panel three years ago. She felt horrified that a proper location had not yet been found and queried if it was really necessary to move to Wanchai. Mrs TU said that she believed there should be some old and beautiful government buildings, such as the former Government House, available for conversion into the Family Court. In response, Ms Alice TAI explained that three years ago the then Chief Justice had rejected the proposal that the Family Court should be conferred with independent jurisdiction or have its separate building. Therefore, the Judiciary Administrator's Office had only resorted to the existing courts for space to accommodate the Family Court.

17.Mrs TU then offered that she had a vacant school building in Kwai Chung and welcomed that the building be converted to accommodate the Family Court. In reply, Ms Alice TAI said that she would take up Mrs TU's offer subject to representatives' acceptance of it.

18.At the invitation of the Chairman, Mr Timothy LEUNG of the Family Mediation Committee (FMC) introduced that FMC was a sub-committee of the Hong Kong International Arbitration Centre and briefed members on the advantages of mediation as a form of dispute resolution. He pointed out that with the increasing number of family cases, the Judiciary should seriously consider promoting mediation as a form of dispute resolution to help reducing the caseload of the Family Court and avoid delay of litigation at the Family Court. Mr LEUNG pointed out that some supportive services provided by mediation such as counselling and conciliation services were particularly important in processing cases like divorces, matrimonial property disputes, custody of children and so on. As pointed out in a few published reports, in over 80% of the cases resolved by mediation, the parties concerned were able to reach agreements for their disputes arising from separation or divorce and these agreements had worked effectively.

19.Mr LEUNG advocated that the following provisions should be made to the Family Court to facilitate conducting mediation at the Family Court-

a room should be provided for display of information on available counselling and mediation services. A manned-counter should be set up there for enquiry. At times seminars relating to mediation could also be held in this room; and
two conference rooms for the conciliator to interview the parties concerned and help them to reach agreements.

20.In response to Mr IP Kwok-him's enquiry, Ms Sharon SER explained that the South Kowloon Magistracy, if suitably renovated, should be a suitable place for the Family Court. As far as location was concerned, Miss SER opined that it should be easily accessible by all forms of public transport including the Mass Transit Railway, buses and taxis. If no locations other than Wanchai had been considered and given there was no urgency in relocating the Family Court, Miss SER suggested that in the next few months the Judiciary Administrator's Office could explore alternative premises which could accommodate the requests put forward by the representatives present.

21.Mr Robin EGERTON made the following final comments -

in terms of the short-term arrangement, the Law Society wished very much to get involved in the consultation in respect of arrangements for the Family Court and the necessary facilities for mediation; and
a formal working party should be established to look at matters in-depth rather than taking a short-term piece-meal approach which ultimately would not achieve a competent Family Court with all the required back-up facilities.

In respect of (b) above, Mr Timothy LEUNG reiterated FMC's support to the suggestion of setting up a working party to conduct a comprehensive study relating to the Family Court such as the location, its required provisions and supportive services.

22.Ms Alice TAI made the following responses-

She agreed that mediation was appropriate to be used as a form of resolving disputes in relation to family cases. However, the working group chaired by His Honour Judge Hartmann had recommended that, due to the lack of manpower and supportive facilities in Hong Kong, mediation should not be introduced to the Family Court. Nevertheless, the Judiciary Administrator's Office would follow up the development and provide the backup facilities when necessary.
It was at the discretion of the Chief Justice to decide whether to appoint the requested working party, and whether the Family Court should be conferred with independent jurisdiction. Ms TAI reiterated that so long as the Family Court was not conferred with independent jurisdiction, the proposed location in Wanchai would be permanent. Ms TAI also committed that, after the relocation, she would further seek improvements in the light of feedback received from family practitioners.

At Mr TSANG Yok-sing's enquiry, Ms TAI revealed that she planned to complete the relocation before the end of the financial year.

IV.Implementation of the Legal Services Legislation (Miscellaneous Amendments) Ordinance 1997
(Paper No. CB(2)240(03))

23.At the invitation of the Chairman, Mr Peter WONG briefed members on the following progress in respect of the implementation of the Legal Services Legislation (Miscellaneous Amendments) Ordinance 1997 (the Ordinance)-

The provisions relating to solicitor corporations and foreign lawyer corporations would not come into operation until the relevant rules were made by the Council of the Law Society. These rules were subsidiary legislation and would have to be tabled in the Provisional Legislative Council (PLC) and to be approved by the Chief Justice.
Provisions in respect of the appointment of Senior Counsel had come into effect on 30 June 1997.
Provisions in respect of the Barristers Disciplinary Tribunal had come into effect on 30 June 1997.
Provisions in respect of the Costs Committee established under the Legal Practitioners Ordinance (Cap. 159) had not yet come into operation as preparation work was still underway.
The amendment provision of the Conveyancing and Property Ordinance had come into effect. By this provision, where the purchaser chose to be separately represented, any provision of an agreement for the sale and purchase of a unit (where the unit was part of an uncompleted development of land, or was part of a completed development of land in respect of which the developer was the vendor) that purported to require the purchaser to pay the vendor's legal costs would be vitiated. A Commencement Notice gazetted on 30 June 1997 appointed 30 June 1997 as the commencement date. To remove any doubt as to the validity of this commencement notice, a fresh Commencement Notice was gazetted on 8 August 1997 appointing 8 August 1997 as the commencement date.

24.In respect of (e) above, Mr IP Kwok-him enquired whether the Department of Justice had any information on the number of agreements affected by the time gap between the two commencement dates. In response, Mr Peter WONG indicated that no such complaints had been received so far. He stressed that any disputes on the validity of the first Commencement Notice would have to be judged by the courts.

25.Senior Assistance Legal Adviser (SALA) referred to the discussion on this matter at the House Committee meeting held on 22 August 1997, and briefed members that, from the Administration's reply, doubts had been cast on the validity of the original Commencement Notice signed by the former Attorney General in that the appointment of commencement date was made before the relevant Ordinance itself was published in the Gazette.

26.Mr Wesley WONG explained that the Secretary for Justice was not conferred with any power to invalidate the original Commencement Notice gazetted on 30 July 1997. Validity of the original Commencement Notice would have to be judged by the courts. He further pointed out that there would be problems in estimating the actual number of agreements affected, and specified, as examples, that only agreements signed between 30 June 1997 and 7 August 1997 and satisfying the following conditions would be affected -

purchasers who chose to be separately represented; and
the property involved in the transaction, if completed, had its relevant occupation permit issued after 30 June 1997.

Mr Wesley WONG said that therefore not all the agreements entered into for the sale and purchase of new development between 30 June 1997 and 7 August 1997 were affected.

27.In response to the enquiry of Mr IP Kwok-him, Mr Wesley WONG explained that it was difficult to say at the moment whether the Government would bear any civil liability. He added that in case of disputes, the purchaser and the vendor, but not the Government, would be the litigants. The Government would not be involved unless any party claiming that any monetary loss suffered by it was caused by the Commencement Notice decided to sue the Government for compensation. SALA supplemented that since the contention would be whether the legal cost should be paid by the vendor or the purchaser, the concerned parties might not want to initiate legal proceedings since the litigation costs involved would be considerable.

28.As to why the former Legal Department had made such a mistake, Mr Peter WONG clarified that it should not be perceived that a mistake had been committed with the original Commencement Notice. The second Commencement Notice was only aimed at removing any doubt on the validity of the first one. At the request of Mr IP Kwok-him, Mr Peter WONG undertook to provide information concerning any disputes coming up in the future concerning problems caused by the first Commencement Notice.

29.In response to a further question from Mr IP Kwok-him, Mr Wesley WONG explained that unless it was ruled by the courts that the first Commencement Notice was invalid, it could not be said now that only the second Commencement Notice was effective.

V.Appeal Committee of the Court of Final Appeal
(PLC Brief on the Hong Kong Court of Final Appeal (Amendment) (No. 3) Bill 1997)

30.Ms Cecilia YEN briefed members that the proposed Bill sought to rectify problems caused by provisions governing the Appeal Committee of CFA. She pointed out that at present there were two pending applications for leave to appeal to be heard by the Appeal Committee, in which two of the three permanent judges had previously sat on the Court of Appeal which had refused the same applications for leave to appeal. However, there was no express prohibition in the CFA Ordinance (Cap 484) to prevent a judge, who had previously heard a case at a lower curt, from hearing the application for leave to appeal in relation to the same case, though there was such prohibition in section 16 of the CFA Ordinance governing substantive hearings of appeals.

31.Ms YEN explained that the Administration thus proposed to amend section 18 of the CFA Ordinance to the effect that a judge should not sit as a member of the Appeal Committee to hear and determine any application relating to matters in which he might have involved in a lower court.

32.To prevent that there would be insufficient permanent judges to sit on the Appeal Committee as a result of implementing the above proposed amendment, the Administration also found it necessary to introduce an additional technical amendment. It had proposed that the Chief Justice should be empowered to nominate a non-permanent Hong Kong judge to sit in place of a permanent judge should the latter be excluded from the Appeal Committee for reasons as spelled out in para. 31.

33.Ms YEN informed members that the Administration also took this opportunity to propose an amendment to section 18(2) of the CFA Ordinance to put beyond doubt that the powers of the Appeal Committee included power to certify under section 32(3) of the Ordinance.

34.Assistant Legal Adviser 5 supplemented that the Bill would be tabled at PLC for the First Reading on 10 September 1997. The Legal Service Division would provide members with a report on this Bill at the House Committee meeting to be held on 12 September 1997.

35.The meeting ended at 6:20 pm.

Provisional Legislative Council Secretariat
8 October 1997