EC(97-98) -
For discussion
on 4 February 1998


ITEM FOR ESTABLISHMENT SUBCOMMITTEE OF
FINANCE COMMITTEE

HEAD 92 - DEPARTMENT OF JUSTICE
Subhead 001 Salaries

Members are invited to recommend to Finance Committee the creation of the following permanent post in the Legal Policy Division of the Department of Justice from 1 April 1998 -

1 Deputy Principal Government Counsel (DPGC) (DL2)

($110,000 - $116,800)

PROBLEM

The Legal Policy Division needs continued support at the DPGC level to provide advice on China law. The present supernumerary DPGC post created for the purpose will lapse on 1 April 1998. Unit (the Unit) of the Legal Policy Division (the Division) will lapse on 1 April 1998The directorate structure of the Department of Justice will then be inadequate to meet the increasing demand for advice on China law.Division will be inadequate to provide effective and efficient advice on China Law.

PROPOSAL

2. The Secretary for Justice proposes to create a permanent DPGC post in the Legal Policy Division of the Department of Justice with effect from 1 April 1998.

JUSTIFICATION

Increase in workload

3. On 14 January 1994, Finance Committee approved the creation of a supernumerary DPGC post up to 31 March 1998 to head the China Law Unit of the Legal Policy Division to cope with the increasing work commitments in the run-up to 1997. During the past few years, the workload of the Unit has increased significantly, and has continued to increase drastically after the reunification. We set out below the number of written advice provided on China law in 1994 to 1997 -significant increase in the quantity of written advice given by the Department on China Law in recent years -

Year

Number of written advice given on China law


1994

27

1995

51

1996

78

1997

177

4. Apart from the increase in number of advice given, advice increased over the past four years, the nature of the advice requested has also become increasingly complicated and detailed. For example, the advice includes those on People's Republic of China's constitutional law, criminal law and procedure, civil procedure, immigration law, household registration law, nationality law, the lawyers system, family law, administrative law and legal personality. Given the increasing demands on the Unit for advice across a wide spectrum of China law, we consider it necessary to have expertise of a level at least commensurate to a DPGC.

5. Counsel of the China Law Unit conduct legal research both in the library and on legal databases. At present, the Unit maintains comprehensive databases on the laws, rules and regulations and judicial decisions of the Mainland. These databases are important in facilitating the provision of legal advice with accurate citations and up-to-date information. The databases are also of assistance in the publication of the China Law Update, a publication issued by the Department of Justice regularly to legal practitioners and law libraries in academic institutions. We require the DPGC to oversee the maintenance and expansion of these databases.

Visits to and from the Mainland

6. In addition to advising on China law, the Unit also organises visits to the Mainland and programmes for incoming legal delegations from the Mainland. Such visits will help our counsel learn about the legal system in the Mainland, and give an opportunity for them to explain Hong Kong's legal system and the rule of law to their counterparts in the Mainland. We set out below the number of such visits to or from the Mainland1996 since 1994 -

Year

Number of visits

to and from the Mainland

arranged by the Unit


1994

20

1995

30

1996

50

1997

31

7. During such visits, our counterparts in the Mainland included the Ministry of Justice, the People's Procuratorate, the People's Court, the National People's Congress Legislative Affairs Commission, the State Council Legislative Affairs Bureau, legal practitioners and academics of various universities in the Mainland. Representatives as senior as ministers and deputy heads are usually the points of contact with the Department. delegations from the Mainland. Despite an apparent decline in 1997 (figure up to September), the total number of visits to and from the Mainland is expected to remain high in the years to come. Given the importance the Department has placed on relations with these counterparts in the Mainland, it is vital, both in practical and protocol terms, to have an officer at the rank of DPGC as the head of the Unit.

Need for a permanent DPGC post

8. At present, the Unit has an establishment of one lawyers (including one on a supernumerary DPGC and one Senior Government Counsel posts. We consider it necessary to create a Deputy Solicitor General (a Principal Government Counsel at DL3 level) and reporting to the Solicitor General, who is the Law Officer (DL6) in charge of the Legal Policy Division. The retention of the DPGC post on a permanent basis to -

  1. supervise the work of counsel in the Unit;

  2. provide a properly balanced management structure;

  3. represent the Unit in contacts with high ranking officials of the Mainland;

  4. provide legal advice on sensitive and complex issues or projects which require input at directorate level; and

  5. oversee the maintenance and expansion of the legal databases initiated by the Unit.

9. We require the existing supernumerary DPGC post on a permanent basis to cope with the increasing volume and complexity of work in relation to provision of advice on China law. We also require the post for establishing and maintaining contacts with counterparts in the Mainland. This is particularly relevant and important after the handover, to ensure the smooth operation of the "one country, two systems" principle. We need to research upon and understand the law of the Mainland and promote awareness of it in the Department. We should encourage and maintain on a long term basis mutual understanding with the Mainland on our respective legal systems. We set out at Enclosures 1 and 2 the main duties and responsibilities of the DPGC post and the proposed organisation of the Division respectively.

FINANCIAL IMPLICATIONS

10. The additional notional annual salary cost of this proposal at MID-POINT is -


$

No. of Posts

New Permanent Post

1,360,800

1

11. The full annual average staff cost of the proposal, including salary and staff on-cost, is $2,470,644.

12. This proposal will not necessitate the creation of non-directorate posts.

13. We have included sufficient provision in the 1998-99 draft Estimates
to meet the cost of this proposal.

BACKGROUND

14. The Legal Policy Division of the Department of Justice comprises the Law Reform Commission Secretariat and five Units, each of which handles one of the following areas of work -

  1. General Advisory;

  2. Human Rights;

  3. Basic Law;

  4. China Law; and

  5. Electoral Affairs.

15. We established the China Law Unit in 1988 to provide expertise in China law. On 14 January 1994, Finance Committee approved the creation of a supernumerary Deputy Principal Crown Counsel (now retitled DPGC) post created in January 1994 for the period up to 31 March 1998 to head the Unit.

16. The Unit co-ordinates all advice/contacts between the Department and the Mainland. It provides advice on the law in the Mainland and promotes knowledge of China law within the Department, and publicises Hong Kong's legal system and its laws to the Mainland.

CIVIL SERVICE BUREAU COMMENTS

17. Having regard to the increasing volume and complexity of work in relation to provision of advice on China Law, the Civil Service Bureau supports the creation of the proposed permanent directorate post in the China Law Unit of the Legal Policy Division. The grading and ranking of the proposed post are considered appropriate.

ADVICE OF THE STANDING COMMITTEE ON DIRECTORATE SALARIES AND CONDITIONS OF SERVICE

18. (CSB to provide an appropriate paragraph for this section.)


Department of Justice
January 1998

Enclosure 1 to EC(97-98)

Main Duties and Responsibilities of
Deputy Principal Government Counsel/China Law
(Designated as Senior Assistant Solicitor General)

Responsible to the Deputy Solicitor General, for -

  1. providing advice on the law of the People's Republic of China (except those of the Basic Law) to government departments and bureaux as requested;

  2. consulting lawyers and others in the Mainland and establishing and developing legal contacts with the Ministry of Justice and other legal institutions in the Mainland;

  3. overseeing the maintenance and expansion of a comprehensive research database on legal issues arising from the PRC Law (except those of the Basic Law);

  4. facilitating training in PRC law for counsel in the Department of Justice;

  5. directing and supervising the day-to-day work of the China Law Unit;

  6. organising legal exchanges and exchange visits with lawyers in the Mainland;

  7. promoting the understanding of the legal system of the Hong Kong Special Administrative Region in the Mainland; and

  8. performing such other duties as may be assigned by the Deputy Solicitor General.

Checklist for ESC Submissions

  1. Necessity to go to the ESC
    2.

    ESC/FC's endorsement is necessary for creation of permanent directorate post.

  2. Authority

    3. S for J considers it necessary to create a permanent supernumerary DPGC post to head the China Law Unit upon the lapse of the supernumerary DPGC on 1 April 1998 M1998, on a permanent basis.

  3. Funding

    4. Justice for 1998-99 and in the 1998-99 draft Estimates.

    Funding for the post was supported in the 1993 RAE (a supernumerary post was first created in January 1994). Sufficient provision has been included in the 1998-99 draft Estimates.

  4. Political Assessment

    5. It would be politically acceptable, given the continued increase in terms of both quantity and quality of requests for advice on issues relating to China law and legal system, and contacts and exchanges between SAR and the Mainland.

  5. Consultation with Provisional LegCo Panel

    6. The Provisional LegCo Panel on Administration of Justice and Legal Services will be briefed at its meeting on 13 January 1998.

  6. Lobbying Requirement

    7. To be confirmed

  7. Fallback

    8. To withdraw, revise and re-submit the paper at a later stage.

  8. Attendance at ESC Meeting

    9. Mr Stephen Lam, Director of Administration and Development/ Mr Peter H K Cheung, Deputy Director (Administration) (to be confirmed)

    Mr Peter Cheung, Deputy Director (Administration)

    Mr Stephen Kai-yi Wong, Deputy Solicitor General

  9. Special Consideration

    10. As the supernumerary DPGC post will lapse on 1 April 1998, it is necessary for the post to be considered and approved by ESC/FC within this legislative session.