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 International Law Division of the Department of Justice from 1 April 1998 -

1 Deputy Principal Government Counsel (DPGC) (DL2)

($110,000 - $116,800)

PROBLEM

The International Law Division of the Department of Justice needs adequate directorate support at the DPGC level to cope with increasing volume and complexity of work of the Division. The present supernumerary post of DPGC will lapse on 1 April 1998.

PROPOSAL

2. The Secretary for Justice proposes to create a permanent DPGC post in the International Law Division with effect from 1 April 1998.

JUSTIFICATION

3. On 14 January 1994, Finance Committee approved the creation of a supernumerary DPGC post up to 31 March 1998 to meet with increasing demands of the International Law Division in the run-up to 1997. The supernumerary DPGC post is mainly responsible for advising in more complex cases on application of treaties; advising on the subject of reciprocal juridical assistance in civil matters; liaising with the Ministry of Foreign Affairs on the bilateral negotiation programme on reciprocal enforcement of judgments; liaising with Consulates General in the Hong Kong Special Administrative Region (HKSAR) on the same subject; and advising on international trade law. The work of the Division has continued to increase even after the reunification. Apart from matters relating to mutual legal assistance (MLA), which we have recently established a dedicated MLA Unit in the Division to deal with, the following areas of work have now become the regular and basic parts of the Division's work -

1. Bilateral international agreements

Hong Kong has entered into bilateral international agreements with many countries in various fields, including : 22 air services agreements, 13 investment protection and promotion agreements, ten surrender of fugitive offenders agreements, three agreements on MLA in criminal matters and two agreements on transfer of sentenced persons. The Division is responsible for providing legal advice to relevant departments and bureaux on the interpretation and application of these bilateral international agreements. The wide range of subjects covered by the bilateral agreements and the expertise required for each of the subjects including extensive knowledge on civil law, criminal law and private international law, demands an additional DPGC to handle.

In addition to advising on agreements already in force, counsel from the Division also lead or assist delegations of the Government of the HKSAR to conduct negotiations for additional bilateral international agreements. These negotiations require the presence of an experienced lawyer at a senior level.

An important subject for future bilateral negotiations will, with the approval of the Central People's Government, be the reciprocal recognition and enforcement of judgments in civil and commercial matters (REJ). The subject is important to the HKSAR in maintaining its status as an international commercial centre with a respected legal system. The Commonwealth arrangements and the bilateral agreements on this subject entered into between the United Kingdom and other countries have ceased to apply to the HKSAR since 1 July 1997. This has become a subject of concern to the business and legal communities in Hong Kong and we are keen to negotiate REJ agreements with countries whose judgments were recognised and enforced by the HKSAR prior to the reunification, as well as to negotiate new REJ agreements with other important commercial and trading partner countries. The Division will play a leading role in the negotiation of these REJ agreements. The Division has meanwhile contacted all of the jurisdictions with which there were formerly arrangements for REJ, in order to ascertain how they now treat judgments from the HKSAR.

2. Advice on multilateral treaties that apply to the Government of the Hong Kong Special Administrative Region

Over 200 multilateral treaties, including many that do not apply to the rest of the Mainland, apply to the HKSAR Government. These include treaties on environmental protection, narcotics control, terrorism, hijacking, shipping, civil aviation, human rights, telecommunications, international legal co-operation and other subjects. Some of these treaties relate to international organisations of which the HKSAR is a member or in whose activities it participates. Counsel of the International Law Division give advice on the interpretation and application of treaties in these areas. Owing to the special status of the HKSAR, the newly implemented concept of "one country, two systems" and the fundamental differences in the law practised in the Mainland and the HKSAR, a lot of practical legal issues would have to be resolved between the Central People's Government and the HKSAR in relation to the assumption of international obligations under both multilateral treaties and bilateral agreements by the People's Republic of China (PRC) on behalf of the HKSAR.

In addition, Article 153 of the Basic Law requires the Central People's Government to seek the views of the HKSAR Government before applying to the HKSAR new international agreements to which the PRC is or becomes a party. The Division advises the HKSAR Government in formulating responses to the Central People's Government.

3. Advice on international legal issues relating to "external affairs"

Under Article 13 of the Basic Law, the Central People's Government authorises the HKSAR Government to conduct relevant external affairs on its own in accordance with the Basic Law. Chapter VII of the Basic Law ("External Affairs") sets out various fields where the HKSAR Government may, either on its own or with the necessary authorisation from Central People's Government, maintain relations with foreign States and regions and relevant international organisations.

Other departments and bureaux seek advice from the Division on the implementation of this important Chapter, which includes provisions on participation of HKSAR Government in international organisations and conferences, and the setting up of representative offices of foreign consular and other official and semi-official missions. These are matters that require advice at a senior level. External affairs advice very often involves complex legal problems. Some examples are in the areas of conferring of consular privileges and immunities status and capacity of the HKSAR in its participation in international organisations and conferences.

4. Other matters

As a result of the HKSAR's membership of the World Trade Organization (WTO), the HKSAR Government increasingly requires advice from the Division on the resolution of trade disputes under the WTO procedures and on the legal implications of multilateral trade agreements such as the General Agreement on Trade in Services and the Agreement on Government Procurement. A Multilateral Agreement on Investment is also under active discussion by the Organisation for Economic Co-operation and Development. The Division needs Counsel at the appropriate level to advise the HKSAR Government, often at very short notice, in these complex areas.

Need for a Permanent DPGC Post

4. The International Law Division is headed by a Law Officer and comprises two PGC, four DPGC (one of which is a supernumerary post) and 13 Senior Government Counsel (SGC). The organisation chart of the Division is at Enclosure 1. The Finance Committee approved on 28 November 1997 creation of a PGC post and establishment of the MLA Unit (EC(97-98)31) in the International Law Division. One PGC, two DPGC and 11 SGC are under the MLA Unit and are fully committed to work relating to MLA. The remaining PGC, two DPGC and two SGC are responsible for all other matters of the Division other than MLA. With the increase in volume and complexity of work mentioned in paragraph 3 above, we consider that the Division will not be able to cope with the increasing workload after the supernumerary DPGC post lapses on 1 April 1998. We therefore consider it necessary to make permanent the supernumerary DPGC post.

5. The proposed DPGC post will continue to advise on trade matters and handle negotiations on bilateral agreements, in particular REJ agreements, and other outstanding treaties and agreements. The main duties and responsibilities of the post are at Enclosure 2.

FINANCIAL IMPLICATIONS

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

	$	No. of Post
New permanent post	1,360,800	1

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

8. This proposal will not necessitate the creation of non-directorate post.

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

BACKGROUND

10. We established the Special Duties Unit in the Department in May 1985. We re-named it to the International Law Division in January 1989 in order to reflect the scope of the work done by the Division and to establish proper recognition by foreign governments with which members of the Division come into frequent contact in the course of their work.

11. On 14 January 1994, Finance Committee approved the creation of a supernumerary Deputy Principal Crown Counsel (now retitled DPGC) post up to 31 March 1998 in order to strengthen the directorate structure of the Division to meet increasing work commitments in the run up to 1997.

CIVIL SERVICE BUREAU COMMENTS

12. Having regard to the workload in relation to international agreements, the Civil Service Bureau supports the creation of the proposed directorate post in the International Law Division. The grading and ranking of the proposed post are considered appropriate.

ADVICE OF THE STANDING COMMITTEE ON

DIRECTORATE SALARIES AND CONDITIONS OF SERVICE

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

Department of Justice
January 1998

---

Enclosure 2 to EC(97-98)

Main Duties and Responsibilities of
Deputy Principal Government Counsel (DL 2)
(International Law)2

Responsible to the Principal Government Counsel (International Law) for the following duties -

1. advising on multilateral and bilateral international agreements extended to Hong Kong;

2. advising on reciprocal juridical assistance, in particular reciprocal recognition and enforcement of judgments in civil and commercial matters between Hong Kong and countries both in and outside the region. Participating in the negotiation of such arrangements and giving legal advice to Bureaux and Departments as required, including on the need for legislation in Hong Kong to give effect to such arrangements;

3. advising, against the background of the provisions of the Joint Declaration and Basic Law, on all forms of co-operation with legal and judicial authorities outside Hong Kong;

4. advising on double taxation arrangements and multilateral trade agreements such as the General Agreement on Trade in Services and legal issues in the resolution of trade disputes under procedures of the World Trade Organization;

5. advising on the drafting of Executive Council papers and attending Executive Council meetings as required on the various matters set out above; and

6. deputising for the Principal Government Counsel (International Law) and assuming the duties of the other Deputy Principal Government Counsel when they are absent and performing administrative and supervisory functions when required.

Checklist for ESC Submissions

1. Necessity to go to the ESC

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

2. Authority

S for J considers it necessary to create a permanent DPGC post in the International Law Division when the supernumerary post lapses on 1 April 1998.

3. Funding

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

There is an awareness among the public and legislators of the importance of the HKSAR's legal arrangements with foreign countries. These come into public prominence most frequently in the context of the surrender of fugitive offenders, which often attracts publicity, and of multilateral treaties on human rights that apply to Hong Kong. Against this background, it is considered that the proposal to make a DPGC post permanent should be sympathetically received.

5. Consultation with Provisional LegCo Panel

The Provisional LegCo Panel on Administration of Justice and Legal Services will be briefed at its meeting on 12 January 1998.

6. Lobbying Requirement

To be confirmed.

7. Fallback

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

8. Attendance at ESC Meeting

Mr David Little, Law Officer (International Law)

Mr Stephen Lam, Director of Administration and Development

Mr Peter Cheung, Deputy Director (Administration)

9. Special Consideration

   As the supernumerary post will lapse on 1 April, it is necessary to go to ESC in the current legislative session.