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

Provisional Legislative Council

PLC Paper No. CB(2) 851
(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 Thursday, 13 November 1997 at 4:30 pm
in Conference Room A of the Legislative Council Building

Members present :

Hon Ambrose LAU Hon-chuen, JP (Chairman)
Hon Kennedy WONG Ying-ho (Deputy Chairman)
Hon WONG Siu-yee
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 Mrs Miriam LAU Kin-yee, JP

Members absent :

Hon Ronald ARCULLI, JP
Hon Bruce LIU Sing-lee

Public officers attending :

Item II

Mr Tony YEN, JP: Law Draftsman
Miss Elizabeth WU: Senior Assistant Law Draftsman

Item III

Ms Elsie LEUNG Oi-sie, JP: Secretary for Justice
Mr Peter H K CHEUNG, JP: Administrator, Department of Justice

Item IV

Mr Ian WINGFIELD, JP: Law Officer (Civil Law)
Mr Peter H K CHEUNG, JP: Administrator, Department of Justice
Mr Bryan P K CHAN: Principal Assistant Secretary (Securities); Financial Services Bureau

Item V

Mr James O ' NEIL: Principal Government Counsel (Elections)
Mr Peter H K CHEUNG, JP: Administrator, Department of Justice

Clerk in attendance :

Ms Doris CHAN: Chief Assistant Secretary (2) 4

Staff in attendance :

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

I.Date of next meeting and items for discussion

Members agreed to re-schedule the next regular meeting to 4:30 pm on 9 December 1997 to avoid clashing with the Election Conference which would be held on 8 December 1997 for the selection of deputies of the Hong Kong Special Administrative Region (HKSAR) to the Ninth National People's Congress (NPC). As regards items for discussion, the Chairman requested members to let the Clerk have their suggestions as soon as possible.

(Post-meeting note : As there was no topic suggested for discussion, the meeting scheduled for 9 December 1997 was cancelled.)

II.Adaptation of laws
[PLC Paper No. CB(2) 538 (01)]

2.The Law Draftsman (LD) briefed members on the implementation of the Adaptation of Laws programme which was to ensure that all legislation was properly adapted to conform with the Basic Law. He said that based on the decision published by the Standing Committee of the National People's Congress (NPCSC) on 23 February 1997, the laws previously in force in Hong Kong would be adopted as the laws of HKSAR, except for any which contravened the Basic Law. A number of principles were also set out by NPCSC for interpreting the laws of HKSAR, and 24 Ordinances which would not be adopted as the laws of HKSAR were listed. In addition, LD pointed out that the Hong Kong Reunification Ordinance enacted on 1 July 1997 served as well to stipulate that the laws in force before 1 July 1997 should be construed with such modifications and adaptations as necessary to conform with the Basic Law and the status of Hong Kong as a Special Administrative Region of the People's Republic of China. It was stipulated under the Hong Kong Reunification Ordinance how certain words and expressions used in all Ordinances were to be construed.

3.LD pointed out that textual amendment of legislative provisions was also necessary to ensure the text of all Ordinances were consistent with the Basic Law and Hong Kong's status as a Special Administrative Region of the People's Republic of China. He said that the Department of Justice was now conducting a review of all the 640 Ordinances and would carry out the necessary legislative work to amend the text of any Ordinances found inconsistent with the Basic Law and Hong Kong's new status.

4.LD explained that in view of the NPC's decision that the Provisional Legislative Council (PLC) should only enact laws which were essential for the normal operation of HKSAR, the Administration had decided that the Adaptation of Laws exercise would concentrate on the enactment of adaptation legislation on essential topics within the current Legislative Council session. So far eight essential topics had been identified, including -

Interpretation of laws as provided in the Interpretation and General Clauses Ordinance,
the Crown in relation to land,
Legal proceedings in the name of the Crown,
Titles of courts and tribunals,
the Garrison,
References to British nationals and Commonwealth citizens,
References to foreign country or state, and
Proper colours for the flags of Hong Kong registered ships.

LD informed members that the Administration aimed to introduce bills on these topics within this Legislative Council session, and to complete the entire Adaptation of Laws exercise within the 1998-99 legislative year.

5.Mr TSANG Yok-shing questioned if there was any difference in legal status between Ordinances which had been textually amended for adaptation purpose and those which had not been amended yet. In reply, LD explained that the Hong Kong Reunification Ordinance had provided a mechanism whereby previous laws could be given a construction consistent with the Basic Law and Hong Kong's new status. For example, any reference to the Governor of Hong Kong or to the Governor in Council should be construed as a reference to the Chief Executive of the HKSAR and the Chief Executive in Council respectively. Nevertheless, LD said that it had been an established practice that textual amendments were required for Ordinances which had been amended. LD said that the Hong Kong Reunification Ordinance only served as an aid to interpretation whereas textual amendments could clarify ambiguities in the provisions. He gave the example of " overseas' which could be interpreted as " places outside the Mainland China " or " places outside Hong Kong " as provided by the Hong Kong Reunification Ordinance. The exact meaning, however, depended on the context of the provision and textual amendment by setting out the exact meaning was necessary.

6.In response to Mr TSANG Yok-shing's enquiry on the selection criteria for the eight topics, LD explained that it was based on the topics' importance and the existence of ambiguities in the provisions of the relevant Ordinances which needed to be clarified as soon as possible.

7.At the Chairman's enquiry, LD said that updating of names of the existing courts and magistracies in government forms and its other documents would be covered under the eight essential topics. LD informed members that the preparation of adaptation legislation for the eight topics was underway and the relevant bills would be introduced to PLC once available.

III.Creation of one Administrative Officer Staff Grade " A " post and one Administrative Officer Staff Grade " C " post in the Administration Division of the Department of Justice
[Paper No. CB(2)538(02)]

8.The Secretary for Justice (SJ) said that the Department of Justice had submitted four proposals involving creation and re-deployment of posts in the Department. One of the proposals was concerning the creation of one Principal Government Counsel (PGC) and re-deployment of two Deputy Principal Government Counsel (DPGC) posts for the setting up of Mutual Legal Assistance Unit, which had already been discussed at the last Panel meeting. Two other proposals involved the following supernumerary posts -

the creation of one DPGC and two Senior Government Counsel posts for a period of three years to provide assistance to the Financial Services Bureau to handle the work related to insider dealing cases; and
the creation of one PGC, two DPGC and ten non-directorate posts for the period from 3 January 1998 to 31 March 2001 to deal with the work arising from the elections to be held in the next three years.

SJ highlighted that provisions had been included in the 1997-98 Estimates to meet the cost of the above three staffing proposals.

9.SJ said that she herself had proposed the creation of the following posts in the Administration Division of the Department of Justice -

one Administrative Officer (AO) Staff Grade " A " post as the Director of Administration and Development; and
one AO Staff Grade " C " post to head a Development Section.

SJ pointed out that in view of the need to improve the management of the Department of Justice, the Administration had already made provisions in the 1996-97 and the 1997-98 Estimates for the creation of one AO Staff Grade " A " and one Senior Personal Secretary posts for the Department.

10.SJ briefed members on her own duties to illustrate the wide scope of responsibilities involved. She said that the AO Staff Grade " A " post had been proposed with a view to relieving SJ of many administrative burdens so that she could concentrate more on the professional aspects of her role as the Secretary for Justice, particularly in advising the Chief Executive and the Executive Council. In this way she would be able to provide Government bureaux and departments with more speedy service. SJ said that with the creation of the proposed new posts, the administration of the Department of Justice would be strengthened and the Department's accountability to the Legislative Council be enhanced.

11.Mrs Miriam LAU noted that the SJ's Office was currently staffed by one PGC (DL3) and an AO Staff Grade " C " (D2). In addition, the Administration Division of the Department was headed by an Administrator at D3 level. She queried in what aspects SJ needed further support which had to be provided by an AO Staff Grade " A " . In response, SJ said that given the large size of the Department, comprising 270 lawyers and over 1,000 staff in total, the workload related to staff matters was very heavy. SJ said that the current Administrator was not at the appropriate level to handle the following areas of work -

attending the Finance Committee (FC), Establishment Sub-committee (ESC) and PLC Panels to present proposals and explain policies; and
handling public relations, and dealing with the media and the public.

12.Mrs Miriam LAU considered it unnecessary to create a new Director post specially for attending the FC, ESC and PLC Panel meetings. In response, SJ further explained that it was necessary to pitch the proposed new directorate post at D6 level as the Law Officer heading each of the Legal Divisions was at DL6. The proposed new Director therefore could not execute the work of administering the Department and co-ordinating new initiatives with other divisions effectively if he were not pitched at the same high level as these Law Officers. She explained that although the work of the new Director could be taken up by SJ herself or the Law Officers, the heavy administrative workload would hinder them from giving speedy legal advice and other professional services to Government bureaux and departments upon request.

13.Mr TSANG Yok-shing enquired if there were new areas of work in the Department of Justice which had to be handled by the proposed new Director. In response, SJ said that there had been demands for improvements to be made by the Legal Department, now the Department of Justice, such as to strengthen its relationship with the Law Society and the Bar Association. Therefore the new Director would seek to make improvements in these aspects and undertake new initiatives for the Department. SJ added that the Department had faced new issues since the handover, and two major litigations had been conducted in the past four months involving challenges to the legal status of PLC and amendment to the Immigration Ordinance, with the latter being still in the appeal process. In anticipation of more such litigations to come up, an inter-divisional Basic Law Group had been set up within the Department to handle the new issues. Following the change of sovereignty, there had also been increased requests from government departments seeking legal advice to ensure certain policies conformed with the Basic Law. With regard to SJ's explanation, Mr TSANG considered that it seemed more appropriate to increase the professional staff of various divisions rather than creating the proposed AO posts to cope with the extra work as mentioned. In reply, SJ explained that the nature of work required a high level of co-ordination within the Department and with the other government bureau and departments, which could be handled by an AO instead of a government counsel. Moreover, the new Director was required to assist SJ in the areas of staff training and development, maintaining links with staff associations and other staffing matters such as the localization programme.

14.The Chairman agreed that there might be a large increase in the legal work handled by the Department. However, he doubted if there was also such a large increase in the administrative work of the Department to justify the required level of administrative manpower. In response, SJ explained that the new Director was required to take up a high level of responsibilities in administrative work. She said that since the other Law Officers and herself were not professional in administrative work, she was much in need of an experienced administrative officer who would be responsible for the formulation of policies for the Department and liaison with government bureaux and departments to ensure close co-ordination in the implementation of policies. She further outlined the duties of the proposed Director, the proposed Deputy Director (Development) and the proposed Assistant Director (Administration) to explain the differences in their duties and responsibilities.

15.Mrs Miriam LAU considered that the duties of the Director and the Assistant Director (Development) overlapped in areas of handling media and public relations, strategic development of the Department and other administrative duties. In response, SJ explained that the two posts only overlapped in some of their scopes of duties but differed in their levels of responsibilities.

16.The Chairman expressed understanding of the need to create the proposed Director post at D6 level to implement new initiatives which required the support within the Department. However, he had reservation about the need to create the Assistant Director (Development) post in addition to the current post of Administrator. In response, SJ said that it was necessary to provide adequate support to the new Director so that he could perform the full functions of his post. She said that the volume of work of the Department was great and extra manpower was required to improve the efficiency and performance of the Department.

17.In response to Mrs Elsie TU " s enquiry, SJ explained that the required AO posts were additional posts which would be filled by AOs within the civil service. Responding to Mr Kennedy WONG's enquiry, SJ said that the rank of the Policy and Administration Co-ordinator of the Legal Aid Department was D3, while that of the Director of the Legal Aid was DL6, which was equivalent to the rank of the Division Heads of the Department of Justice.

18.In response to the Chairman's enquiry, SJ said that the new Director would assist in the formulation and implementation of policies concerning staff matters, localization, administration and strategic development of the Department. She clarified that the formulation and implementation of legal policies would remain as the professional duties of the law officers.

19.Mrs Miriam LAU considered that more justifications were required for the creation of the two additional directorate posts for handling administrative work of the Department. Members agreed to further discuss the matter at the ESC meeting scheduled for 19 November 1997. In the interim, the Chairman requested SJ to provide further justifications, if any, to the Panel.

IV.Creation of one Deputy Principal Government Counsel post in Civil Division for Insider Dealing Tribunal Work
[Paper No. CB(2)538(03)]

20.The Law Officer (Civil Law) (LO(CL)) said that there was an error in the Administration's paper concerning references to the establishment of the Tribunal in 1994 and clarified that the Tribunal under the Ordinance was actually established in 1991, but the first hearing by the Tribunal established under the Ordinance was at the end of 1993 and in the beginning of 1994. He believed that the same error appeared in the final paper which had been issued already. LO(CL) said that the staffing proposal was put forward by the Department of Justice with the support of the Tribunal and the Financial Services Bureau and the proposal sought to ensure adequate manpower for the Tribunal to perform effectively its statutory functions.

21.In response to Mr WONG Siu-yee's enquiry, LO(CL) explained that since the required post was supernumerary, it was not necessary to fill it on a permanent basis. He said that the normal practice was to select an officer from within the Department to fill the vacancy.

22.Members had no further comments on the paper.

V.Creation of one supernumerary Principal Government Counsel post in Legal Policy Division and two supernumerary Deputy Principal Government Counsel posts in Law Drafting Division for elections in 1998 and 2000
[Paper No. CB(2)538(04)]

23.Mr WONG Siu-yee asked if the Department of Justice would consider recruiting people from the private sector to fill the required posts. In reply, the Principal Government Counsel (Elections) (PGC(E)) pointed out that it was unlikely that the expertise required for the work could be found in the private sector because the work was of a specialized nature. He said that there were a number of officers experienced in electoral matters available in the Department and their expertise could be drawn on to make up the election team. In response to Mrs Elsie TU's enquiry, the Administrator said that the normal practice was that any vacancy of PGC or DPGC posts would be filled by promotion or re-deployment from other Divisions of the Department. The consequential vacancies were normally filled by officers at the immediate lower rank on an acting basis. Regular recruitment exercises were conducted annually to recruit new appointees to fill vacancies of Government Counsel. A waiting list of suitable candidates was kept to fill any vacancies which might arise. Since the additional posts required would last for a period of three years, they would be filled by internal re-deployment. Following that, the consequential vacancies would be filled by new appointees.

24.Members had no further comments.

25.The meeting ended at 6:15 pm.

Provisional Legislative Council Secretariat
8 January 1998