Panel on Administration of Justice and Legal Services (Minutes) 13 Oct 97

Provisional Legislative Council

PLC Paper No. CB(2)770
(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, 13 October 1997 at 4:30 pm
in the Chamber of the Legislative Council Building

Members present :

Hon Ambrose LAU Hon-chuen, JP (Chairman)
Hon Kennedy WONG Ying-ho (Deputy Chairman)
Hon David CHU Yu-lin
Hon Mrs Elsie TU, GBM
Hon CHEUNG Hon-chung
Hon TSANG Yok-sing
Hon YEUNG Yiu-chung
Hon IP Kwok-him
Hon Bruce LIU Sing-lee
Hon Mrs Miriam LAU Kin-yee, JP

Member attending :

Hon Henry WU

Members absent :

Hon WONG Siu-yee
Hon Ronald ARCULLI, JP
Hon CHOY So-yuk

Public officers attending :

Item I

Ms Elsie LEUNG Oi-sie, JP: Secretary for Justice
Mr R C ALLCOCK: Deputy Law Officer (Secretary for Justice's Office)
Mr Peter CHEUNG, JP: Administrator, Department of Justice

Item IV

Ms Alice TAI, JP: Judiciary Administrator
Mr David LEUNG: Assistant Judiciary Administrator
Mr Tong YEN, JP: Law Draftsman, Department of Justice
Mr Peter CHEUNG, JP: Administrator, Department of Justice

Item V

Mr David LITTLE, JP: Law Officer (International Law) Department of Justice
Mr Peter CHEUNG, JP: Administrator, Department of Justice

Clerk in attendance :

Ms Doris CHAN: Chief Assistant Secretary (2) 4

Staff in attendance :

Mrs Justina LAM: Assistant Secretary General 2
Mr Jimmy MA: Legal Adviser
Ms Joanne MAK: Senior Assistant Secretary (2) 4

I.Briefing by the Secretary for Justice on the Chief Executive's Policy

Progress Report

The Secretary for Justice (S for J) briefed members that, over the past year, the Department of Justice had been working on 20 pledges. The Department was well on target in meeting nine of them, including -

training counsel and court prosecutors to help vulnerable witnesses giving evidence in criminal proceedings;
pressing the Law Society and the Bar Association to implement certain reforms proposed in the Report on Legal Services;
publishing the Victim's Charter in October 1996;
publishing by the Law Reform Commission the final reports on " Fraud " , " Hearsay Evidence in Civil Proceedings', " Corporate Rescue " and a consultation paper on " Overseas Residential Properties';
increasing the staffing of the Legal Policy Division;
enacting the remaining 16 localising Ordinances on 1 July 1997;
preparing detailed proposals to amend all Hong Kong Ordinances to conform with the Basic Law;
computerising the China Law Database; and
authenticating Chinese texts of at least 200 Ordinances which had been enacted in English only.

2.S for J briefed members that the Department of Justice was also on schedule in implementing the following three commitments -

the Laws of Hong Kong would be placed on the Internet commencing from November 1997;
in the past year, legal support had been provided to the Insider Dealing Tribunal by assigning counsel and by briefing out work. The Department of Justice was considering to seek funding from the Finance Committee at the end of 1997 to create a dedicated post to enhance the legal support for the Tribunal; and
legal support had been provided to strengthen the Law Drafting Division by creating four counsel posts and five support staff posts to deal with additional drafting work required in 1995 to 1997. A review on the need for a Principal Government Counsel post was in progress.

3.S for J informed members that a proposal made in 1994 of spending $10.5 million in 1994 to 1997 to provide training in common law for Chinese government lawyers of the Mainland was currently under review by the Department of Justice. The Mainland authorities were being consulted on details of the scheme's operation.

4.S for J briefed members that the Department of Justice was taking active measures to speed up the progress on the following two commitments which were behind schedule -

a report on surveillance and a consultation paper on " Companies Winding-up Provisions' to be published by the Law Reform Commission; and
a Mutual Legal Assistance Unit to be established in the International Law Division pending approval from the Establishment Sub-Committee of the Legislature to create a directorate post for the Unit.

5.S for J pointed out that there were also the following on-going commitments -

to continue to discuss with the Bar Association arrangements for the admission of foreign lawyers as barristers;
to promote local and international awareness of the rule of law in Hong Kong and enhance Hong Kong's status as a legal services centre by launching a three-year publicity campaign;
to take all necessary steps to ensure the Basic Law operate smoothly in Hong Kong;
to enhance the understanding of Hong Kong laws in the Mainland by organising lectures and seminars on the subject in the Mainland; and
to develop, with the Advocacy Institute of Hong Kong, bilingual litigation further by organising training courses for government lawyers on advocacy in Chinese.

The 1997 Policy Address - Policy Programme of the Department of Justice

6.S for J elaborated that the Department of Justice was responsible for providing various policy bureaux and government departments with legal advice to ensure that government policies and legislation in force as well as that to be passed by the Provisional Legislative Council conformed with the Basic Law. The Department of Justice also represented the Government in courts in all litigations alleging that any particular policy or legislation introduced had contravened the Basic Law.

7.S for J highlighted several performance indicators of the Department of Justice, and informed members that over the past year, $8-plus million were confiscated as proceeds of crimes and $12-plus million from offenders of corruption. The Department of Justice had also completed preparation of the Hong Kong Reunification Ordinance, the Legislative Council Ordinance and the Electoral Affairs Commission Ordinance within very tight schedules.

8.S for J introduced the 17 new commitments she had made in the 1997/98 Policy Programme for the Department of Justice, and pointed out that Hong Kong was making headways in areas like bilingual legislation, promotion of use of Chinese in courts, establishment of independent final appeal jurisdiction and development of common law.

Questions raised by members

9.Regarding the proposal of setting up a special team to review the existing legislation for resolving problems of terminological inconsistencies and ambiguities, Mrs Miriam LAU questioned how serious these problems were, bearing in mind that the Bilingual Laws Advisory Committee had just finished examining the translated legislative texts. In response, S for J clarified that the special team was not set up solely to look at these problems but would deal with other issues as well. She explained that due to the long history of legislation in Hong Kong, it was understandable that there were problems of terminological inconsistencies and ambiguities in many places with existing legislation and it was desirable to redraft the relevant provisions in plain and modern language. In response to Mrs LAU's further enquiry, S for J said that the special team would prioritise the existing laws of Hong Kong for the review but details had yet to be worked out.

10.Mr IP Kwok-him enquired whether the Department of Justice would have to increase manpower in order to provide legal advice on Mandatory Provident Fund Schemes and Occupational Retirement Schemes. In response, S for J explained that the additional workload caused by this new service commitment would be absorbed by the Department as its routine work and it had no plans at the moment to increase manpower for the purpose.

11.Mr IP Kwok-him further enquired how the Department of Justice would co-ordinate with the steering committee to be set up by the Constitutional Affairs Bureau under the chairmanship of the Chief Secretary for Administration (CS) for the promotion of the Basic Law. S for J explained that the Department of Justice had been actively promoting knowledge within the Civil Service on the application of the Basic Law as well as national laws in the Hong Kong Special Administrative Region (HKSAR). For example, it had assisted the Civil Service Training and Development Institute to organise training courses on Basic Law and preparing relevant promotional materials. S for J stressed that the Department would give full support to the steering committee headed by CS by providing the necessary information and expertise to assist in any training programmes organised by the committee.

12.Mr Kennedy WONG Ying-ho enquired if the Government had set a timetable for merging the solicitor and barrister professions. S for J responded that the Government would not take such action until the two professions concerned reached consensus and unanimously requested the merge. She said that the Government would not unilaterally set a timetable nor would implement it rigidly.

13.Mr WONG further enquired if any mechanism was established by the Department of Justice to maintain contacts and co-ordination with the Standing Committee of the National People's Congress (NPCSC) and its Basic Law Committee in order to facilitate the Department's role of providing specialised Basic Law advice to the Government. In reply, S for J explained that HKSAR Government was obliged to report to NPCSC any legislation passed in HKSAR. Therefore, a mechanism had been in place for the Department of Justice to make such reports to NPCSC. S for J said that the HKSAR Government also maintained close contacts with the Basic Law Committee and put forward its views on matters related to the Basic Law to the Committee for consideration. However, the final decisions on such matters rested with the Basic Law Committee.

14.Mr Henry WU wanted to be briefed on the purposes of setting up a new Mutual Legal Assistance (MLA) Unit under the Department of Justice and its functions. In response, S for J explained that MLA Unit would handle requests made to and from other jurisdictions for mutual legal assistance in both civil and criminal matters. The services were currently rendered by different divisions of the Department of Justice and this arrangement was far from satisfactory. S for J considered that it was necessary to establish an MLA Unit to centralise and strengthen the MLA service. Having briefed members on the different aspects of MLA work, S for J pointed out that there had been large increase in the volume of MLA work, and quoted that the number of items of advice given by the Extradition and Treaties Unit and the Asset Recovery Unit had risen from a combined total of 1,176 in 1994 to 2,075 in 1996. She also gave an account of the agreements secured with other jurisdictions which enabled execution of MLA work. S for J said that details of the MLA Unit would be further explained under agenda item V.

15.In response to Mr Henry WU's another enquiry, S for J explained that the purpose of setting up model courts and conducting mock trials in the Mainland was to promote in the Mainland a better understanding of the laws and legal system of HKSAR. The first mock trial was scheduled to be held in Beijing in December 1997, and afterwards in Shanghai, Dalian, Kunming, Guangzhou and Shamzhen.

16.Mrs Miriam LAU was concerned that some television dramas produced commercially might inaccurately depict the workings of the legal system, and asked whether the Department of Justice might assist the producers in this respect. S for J considered that the responsibility for this rested with the television companies themselves. If they produced misleading programmes, they would be open to public criticism and the Department of Justice could forward its comments to the companies. Mrs LAU enquired whether the television companies knew that they could seek advice from the Department of Justice in case they had any questions on the legal system. S for J undertook to seek confirmation on this arrangement.

(Post-meeting note : S for J's reply was issued under PLC Paper No. CB(2)517.)

17.Mr Bruce LIU asked how long it would take for the Department to incorporate amendments to the Hong Kong laws on the Internet, and during the interim what measures the Department would take to inform Internet users that the relevant section was not up-to-date. In response, S for J said that the Department targetted to incorporate amendments to the laws of HKSAR on the Internet within two to three weeks of their enactment. Before the relevant section was textually amended, she would consider placing some kinds of marks next to the relevant provision to indicate that the provision had been amended but not yet textually updated on the Internet.

(Post-meeting note : S for J's reply was issued under PLC Paper No. CB(2)517.)

18.Responding to Mr LIU's enquiry about the future workload of the Department of Justice, S for J said that the workload would still be heavy taking into account the legislation work of the Provisional Legislative Council, the Adaptation of Laws programme, the need to provide legal input to the HKSAR Government elections in 1998 and 2000 and drafting of legislation for the Legislative Council.

II.Confirmation of minutes of meeting held on 8 September 1997 and matters arising
(PLC Paper No. CB(2)407)

19.The minutes of the meeting held on 8 September 1997 were confirmed.

III.Date of next meeting and items for discussion

20.The next meeting would be held at 4:30 pm on 10 November 1997. There were no items suggested by members for discussion at the next meeting. The Chairman requested members to inform the Clerk if they had any suggestions afterwards.

21.The Chairman informed members that the meeting dates for January to March 1998 were as follows -

--9 February 1998

--9 March 1998

IV.Provisions for the use of Chinese in courts

[Paper No. CB(2)408(01)]

22.The Judiciary Administrator (JA) said that the paper provided by her Office gave an update on the implementation of the use of Chinese in courts and information on the resources available to the Judiciary for this programme. Resources for the use of Chinese in courts were broadly divided into two categories -

direct expenditure which was committed solely for the use of Chinese in courts programme; and
indirect expenditure which mainly comprised costs of installation of facilities to improve court services and facilitate the use of Chinese in courts.

23.JA explained that the goal of the Judiciary's programme of implementing use of Chinese in courts was to put in place before 1 July 1997 a bilingual court system for courts at all levels in which either Chinese or English could be used. She pointed out that the Judiciary did not push parties and lawyers to use the Chinese language. In the choice of languages, the decision rested with the judge whose major concern was to ensure the just and expeditious disposal of a particular case.

24.In response to the Chairman's enquiry, Mr Tony YEN said that the Department of Justice was fully supportive of the use of Chinese in courts. It had provided various assistance such as organising training courses for government lawyers on use of Chinese in courts, translating the laws of Hong Kong into the Chinese language, and publishing English-Chinese glossaries of legal terms to provide judges and judicial officers with a practical tool for use in Chinese trials.

25.Mr IP Kwok-him noted that the percentage of Chinese hearings in the higher courts (except the Lands Tribunal) was small accounting for an average of 10-plus % of total cases. He enquired whether the low percentage was attributable to long waiting times for Chinese trials which had deterred users from opting for Chinese to be used in courts. In reply, JA clarified that the average waiting times for Chinese and English trials were more or less the same and the difference was at most a few weeks only. Listing meetings attended by representatives from courts of all levels were held once every two weeks to monitor court waiting times and to ensure that they were within reasonable periods. At Mr IP's request, JA undertook to provide information on the average waiting times for cases conducted in Chinese and English in the District Court and the courts above. (Post-meeting note : the information was issued under PLC Paper No. CB(2)487.) JA said that there were no cases which had been conducted in English instead of Chinese because of long waiting times for Chinese trials.

26.JA further explained that the nature of cases could be a factor accounting for why there was a higher percentage of Chinese hearings in the lower courts. She said that as cases heard by the higher courts usually involved arguments of points of law, parties concerned might prefer to use English for conducting the cases. On the other hand, cases heard by the lower courts were generally related to arguments about facts and therefore the Chinese language might be considered more appropriate to be used in conducting the cases.

27.Mr IP Kwok-him further asked whether the Judiciary had any plans to increase the percentage of Chinese hearings in the higher courts. In reply, JA explained that while the Judiciary was committed to implement bilingualism in courts, the authority to decide on the choice of languages for a particular case rested with the judges. The Judiciary only played a supportive role by providing the necessary resources to enable a case be conducted in Chinese if it was the official language decided to be used by the judge. Therefore, the Judiciary had no plans to take any measures to increase the said percentage.

28.Mr Kennedy WONG Ying-ho asked whether the Judiciary had projected the future usage rate of Putonghua as an official language in courts and whether there were plans to train the required interpreters. In reply, JA said that the Chinese language was not defined as Cantonese or Putonghua as both were accepted as official languages used in courts. For cases which were decided by judges to be heard in Putonghua, CIs were available to provide interpretation services to parties such as the witnesses or the judge should they have difficulties in the use of Putonghua for communication. JA added that Putonghua training courses were being provided to every Chinese judge, non-Chinese judges who were interested as well as judicial officers as they might have to deal with public members who spoke Putonghua only.

29.In response to Mr CHEUNG Hon-chung's enquiry, JA said that at present, most of the Chinese trials had been conducted in Cantonese. So far there had not been requirements imposed on jurors that they must know Putonghua.

30.The Chairman asked whether the Judiciary would sponsor all the Senior CIs to attend the tailored courses on law and language at Beijing University and the schedule of the scheme. In reply, JA explained that the courses were first organised in August 1996 as a pilot scheme attended by three Senior CIs only. As the courses were found quite successful, six more Senior CIs were sent to attend the courses. JA said that the Judiciary initially planned that those who had attained a certain level of Chinese legal writing skills could attend the courses. However, details of the long-term plan for the courses had yet to be worked out.

31.Mrs Elsie TU commented that the Judiciary should arouse the incentive of the officers to learn and study Putonghua by offering them salary increments after completion of their studies on Putonghua. In reply, JA believed that many of the interpreters would consider selection and the sponsorship for them to attend the courses as recognition of their work and their good potential, and therefore served better as an incentive. JA supplemented that, in fact, before the Judiciary launched the use of Chinese in the courts, quite a number of judges and judicial staff had endeavoured to form study groups during lunch time or after court work to discuss different aspects of approaching the subject of use of Chinese. She believed that many of the staff were actively participating in the programme of implementing use of Chinese in courts.

32.In response to the Chairman's enquiry, JA said that two Cantonese courses had been organised in the past two years for foreign judges. She explained that the policy of the Judiciary was to ensure that anyone who wanted to learn Cantonese and Putonghua should be given such opportunities to learn. To help judges to accustom themselves to using Chinese in courts, JA said that the Judiciary had provided the following support -

glossaries on criminal law and family law had been compiled; and
a series of mock trials had been conducted to assess the adequacy of Chinese summing-ups in jury trial in the High Court.

33.At Mr IP Kwok-him's enquiry, JA said that all courts except for 13 courts in the High Court had already been provided with digital audio recording and transcription systems (DARTS). Installation of DARTS in the remaining 13 courts in the High Court would be completed by mid 1998. The Family Court, on removal to the High Court, would be installed DARTS as well.

34.Mrs Miriam LAU commented that it was a difficult task to implement use of Chinese in courts and considered that the percentages of Chinese trials in the higher and lower courts were satisfactory. She enquired what measures the Judiciary would take to assess the standards attained so far in respect of use of Chinese in courts. In view of the experience of Malaysia which had encountered much difficulty in the implementation of a bilingual court system, Mrs Miriam LAU enquired whether there was anything which the Judiciary could learn from the Malaysian experience.

35.In response, JA reiterated that the Judiciary did not intend to push parties and lawyers to use the Chinese language for conducting cases. It shared the view held in common by judges and the two branches of the legal profession that use of Chinese in courts should not be implemented hastily. She informed members that the Steering Committee on the Use of Chinese in Courts chaired by the Honourable Mr Justice CHAN had been closely monitoring the progress in implementing use of Chinese in courts. In addition, judges from courts of all levels had formed groups for exchanges of ideas and experiences of using Chinese in courts. JA pointed out that all parties concerned shared the view that the quality of judicial service should not be compromised in the implementation of bilingualism in courts.

36.As regards foreign experiences in implementing bilingual court systems, JA said that studies had been conducted by the then Legal Department on the Malaysian experience and the findings had been reported earlier to the former LegCo Panel on Administration of Justice and Legal Services. In view of the differences in social and cultural backgrounds between Hong Kong and other countries, it was concluded that Hong Kong should develop a bilingual court system to suit its own needs and circumstances. The Judiciary would plan its way forward in collaboration with the Law Society and the Bar Association.

V.Creation of one Principal Government Counsel and re-deployment of two Deputy Principal Government Counsel posts for the setting up of Mutual Legal Assistance Unit in the International Law Division

[Paper No. CB(2)408(02)]

37.The Law Officer (International Law) (LO) briefed members on the Administration's draft paper setting out the proposal to create a permanent post of Principal Government Counsel (PGC) to head a new MLA Unit and other related staffing arrangements. He explained that the proposed arrangements were necessary because -

different divisions of the Department of Justice had been handling requests for legal co-operation particularly in criminal matters. This had resulted in a situation in which matters tended not to be handled with the efficiency that was desirable; and
some overseas jurisdictions were not satisfied with the present arrangements and would prefer a single contact point to deal with their requests.

38.Mr IP Kwok-him noted that the need for setting up an MLA Unit was first raised in 1994 and asked why the Administration had not proposed to establish the Unit until now. He also commented that the MLA workload given in the paper did not appear heavy enough to justify the need for establishing an MLA Unit. He requested that more information be provided to show that the proposed manpower level was necessary.

39.In response, LO explained that the proposal was first put to the legislature in 1996. There were questions raised at that time as to whether or not the creation of the post was premature particularly having regard to the fact that all the legislation necessary for the implementation of agreements which might be negotiated on the subject had not be enacted. Since at that stage Hong Kong could still use the United Kingdom (UK) legislation to implement arrangements and could rely on UK bilateral agreements with foreign jurisdictions, the Department of Justice decided that it should concentrate its priorities on ensuring that the necessary legislation was in place to implement any agreements. As a result, the Fugitive Offenders Ordinance, the Mutual Legal Assistance in Criminal Matters Ordinance and the Transfer of Sentenced Persons Ordinance were enacted last year. With the necessary enabling legislation in place, it was now necessary to create a post to head the Unit and to re-deploy two existing posts from other divisions of the Department to the proposed MLA Unit.

40.LO emphasized that not just the volume of MLA workload but also the competence and efficiency with which the Department of Justice handled the work should be taken into consideration. He also pointed out that it was necessary to establish a centralised unit to deal with requests relating to MLA because many jurisdictions with which Hong Kong had dealings in the context of MLA had been able to provide a single point of contact for Hong Kong in processing requests from Hong Kong. He took the view that without an MLA Unit, the Hong Kong Special Administrative Region did not present a very helpful working model to foreign jurisdictions seeking assistance from us.

41.Mr IP Kwok-him agreed that provision of a focal point of contact with foreign jurisdictions for handling MLA work would improve efficiency of work. However, he noted that the workload figures given at Enclosure 1 did not seem very substantial, and asked for further information on the workload to be handled by the Unit. In response, LO clarified that the statistics quoted in Enclosure 1 only related to extradition. He invited members' attention to the tables at Enclosures 2 to 5 of the paper and pointed out that the total number of MLA cases handled so far this year was about 70.

42.Mrs Elsie TU expressed support for the proposal as it would enhance efficiency in processing MLA work. She enquired whether the setting up of the MLA Unit would speed up the negotiations with countries like Nigeria, Columbia and other non-White nations for prisoners who had applied to go back to their own countries to serve their sentences. In reply, LO pointed out that the reason for establishing the MLA Unit in the International Law Division was because it was the Division responsible for negotiating agreements covering the transfer of sentenced persons, surrender of fugitive offenders and mutual legal assistance. Therefore, establishing the Unit in that Division would certainly expedite the process both in negotiating and dealing with particular requests. LO pointed out that in identifying the countries with which agreements on the transfer of sentenced persons were negotiated, the Department of Justice based its priorities on the number of people who wanted to be transferred. He assured that there was no discrimination in the way that countries were identified, and that the Department of Justice was now seeking more authorization from the Central Government for it to enter into negotiations for agreements with more countries.

43.Mrs Miriam LAU also expressed support for the establishment of the MLA Unit and creation of the proposed PGC post. She urged the Administration to make arrangements for MLA with the Mainland as this was very important to Hong Kong.

44.As regards the time frame for the Unit to come into operation, LO informed members that the proposal under discussion would be submitted to the Establishment Subcommittee at its meeting on 5 November 1997 and the Finance Committee towards the end of November. Subject to approval being obtained, the Unit would be in place in the first quarter of 1998. In response to Mrs Miriam LAU's enquiry, LO said that the proposed PGC post would be filled within the Department by promotion.

45.The meeting ended at 6:20 pm.

Provisional Legislative Council Secretariat
22 December 1997