Bills Committee on Adaptation of Laws (No. 4) Bill 1998(Minutes) 7 Dec 98

Legislative Council

LC Paper No. CB(2)993/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/9/98

Bills Committee on Adaptation of Laws (No. 4) Bill 1998

Minutes of meeting held on Monday, 7 December 1998 at 8:30 am in Conference Room A of the Legislative Council Building

Members Present :

Hon Andrew WONG Wang-fat, JP (Chairman)
Hon Margaret NG
Hon Jasper TSANG Yok-sing, JP
Hon Mrs Miriam LAU Kin-yee, JP

Members Absent:

Hon James TO Kun-sun
Hon Ambrose LAU Hon-chuen, JP

Public Officers Attending:

Ms Sherman CHAN: Senior Assistant Law Draftsman
Mr Michael SCOTT: Senior Assistant Solicitor General
Ms Kitty FUNG: Senior Government Counsel

Clerk in Attendance:

Mrs Percy MA: Chief Assistant Secretary (2)3

Staff in Attendance :

Mr Stephen LAM: Assistant Legal Adviser 4
Mr Paul WOO: Senior Assistant Secretary (2)3

I. Election of Chairman

Mr Andrew WONG was elected as Chairman of the Bills Committee.

II. Meeting with the Administration
(The Bill; the Legislative Council Brief (File Ref : LP/5039/19/4C II); LC Paper No. LS59/98-99; LC Paper Nos. CB(2)774/98-99(02); 739/98-99(01); 532/98-99(01); 807/98-99(01) to (03))

2. The following papers prepared by the Administration were tabled at the meeting (and circulated after the meeting vide LC Paper No. CB(2)820/98-99) -

"Provisions that are not covered by, or are given treatment different from, the Guideline Adaptations" (CB(2)820/98-99(01)); and
"Proposed new section 3(3) for the Legal Practitioners Ordinance (Cap. 159)" (CB(2)820/98-99(02)).

3. At the invitation of the Chairman, Senior Assistant Solicitor General ("SASG") briefed members on LC Paper No. CB(2)820/98-99(01). The paper highlighted provisions specific to the Adaptation of Laws (No. 4) Bill 1998 ("the Bill") which were not covered by, or were given treatment different from, the guiding principles of adaptation and guideline glossary of terms set out in LC Paper No. CB(2) 739/98-99(01).

4. In response to members' enquiries, Senior Assistant Law Draftsman ("SALD") advised that the guideline glossary of terms shown in the table at Annex A of LC Paper No. CB(2)739/98-99(01) was not intended to be exhaustive. The table would be revised and updated as necessary to include new items of general relevance to the present adaptation of laws exercise. In addition to the general guidelines, proposed amendments for adapting particular terms on an Ordinance-by-Ordinance basis and instances of departure from the guidelines would be explained separately to the Bills Committees responsible for scrutinizing the respective Adaptation of Laws Bills.

5. Members agreed that to facilitate the work of Bills Committees on adaptation of laws, a set of essential reference documents on the principal guidelines on adaptation should be compiled and made available to every Bills Committee as soon the Committee was formed. These documents should be updated where necessary as a result of deliberations of individual Bills Committees. The Clerk and the Administration noted the view.

Clerk/ Adm

6. In response to Miss Margaret NG's question, SALD said that there were no express statements in the provisions of the various Ordinances covered by the Bill to provide that any of the Ordinances bound the State or the Government. SALD agreed that she would seek confirmation on the arrangement that express provisions to that effect in Ordinances covered by an Adaptation of Laws Bill should be highlighted in the Legislative Council Brief on the Adaptation of Laws Bill concerned.

Adm

Clause-by-clause examination of the Bill

7. Members agreed to proceed to clause-by-clause examination of the Bill.

Legal Officers Ordinance (Cap. 87)

Section 2 - Interpretation

8. Referring to the proposed adaptation of the reference to "Government of Hong Kong" to "the Government" under the definition of "public body", Miss Margaret NG enquired why the original expression was not adapted to "the Government of the Hong Kong Special Administrative Region". SALD explained that it was because "the Government" was a defined term under the Interpretation and General Clauses Ordinance (Cap. 1) meaning "the Government of the Hong Kong Special Administrative Region" ("HKSAR").

Section 4 - Matters in which legal officers may act

9. Members noted that section 3(1) referred to in this section stipulated that "Any legal officer shall in respect of any of the matters mentioned in section 4(1) have all the rights of barristers and solicitors duly admitted under the provisions of the Legal Practitioners Ordinance (Cap. 159)."

10. Miss Margaret NG enquired of the reason for adapting "Crown" to "Government" in section 4(1)(b). She said that before the reunification, references to "Crown" in the law could mean either the Crown in right of the Government of Hong Kong or the Crown in right of the Government of the United Kingdom. She asked whether matters referred to in section 4(1)(b) of Cap. 87 could include matters which were of interest to the Government of the United Kingdom but not of interest to the Government of Hong Kong. If so, the proposed adaptation of "Crown" to "Government" might have narrowed the rights and privileges of legal officers under section 3(1) of Cap. 87. Miss Margaret NG also pointed out that section 21 of Schedule 8 to Cap. 1 adopted a different approach in interpreting similar references. It stated that "Any provision saving the rights of Her Majesty, Her Heirs and Successors shall be construed as saving the rights of the Central People's Government of the People's Republic of China and the rights of the Government of the Hong Kong Special Administrative Region under the Basic Law or other laws." She opined that the ambit of section 4(1)(b) of Cap. 87 should be clarified to determine if the present proposed adaptation truly reflected a continuity of the pre-reunification situation.

11. The Administration advised that in relation to references to "Crown", the relevant principles of interpretation were in sections 1 and 2 of Schedule 8 and section 7 of Schedule 9 to Cap. 1 (LC Paper No. CB(2)532/98-99(01) refers). Since the matters specified in paragraphs (a), (b) and (c) of section 1 of Schedule 8 to Cap. 1 were not within the scope of matters which legal officers might act, the question of limiting the rights and privileges of legal officers acting in such matters did not arise. The reference to "Crown" in section 4(1)(b) of Cap. 87 was therefore adapted to "Government" in accordance with the interpretation principle in section 2 of Schedule 8 to Cap. 1 to reflect the constitutional arrangements after the reunification.

12. Miss Margaret NG enquired of the content of "Consultation Paper No. 41" which the Administration had quoted in its written reply made in response to the Assistant Legal Adviser's queries (LC Paper No. CB(2) 807/98-99(03) refers). The Administration advised that the Paper was a consultation document on adaptation of laws issues drawn up by the then Legal Department after consulting the various policy bureaux for consideration of the Sino-British Joint Liaison Group (JLG).

13. In response to the Chairman's request, SASG said that he would seek confirmation as to whether a copy of Consultation Paper No. 41 could be provided for members' reference.

Adm

14. In reply to Miss Margaret NG's question on section 4(1)(d)(i) of Cap 87, SALD drew members' attention to paragraph 12 of LC Paper No. CB(2)739/98-99(01) which explained the Administration's proposal not to adapt references to "Her Majesty's forces" and other military references found in individual Ordinances at the present stage of the adaptation exercise, but to deal with such references collectively in a separate Adaptation of Laws Bill to be introduced later for the subjects concerned. She said that pending the result of a general review of adaptations of military references as mentioned, the proposed adaptation of section 4(1)(d)(i) would be deleted from the present Bill.

15. On section 4(1)(d)(ii) of Cap. 87, the Administration advised that pursuant to section 2A of Cap. 1, provisions conferring privileges on the U.K. other than provisions giving effect to reciprocal arrangements between Hong Kong and the U.K. should have no further effect. Furthermore, there was no equivalent to the reference to "the Trade Commissioner for the United Kingdom or any territory forming part of the Commonwealth" for the purpose of adaptation. Therefore, the existing section 4(1)(d)(ii) was proposed to be deleted.

16. Miss Margaret NG said that the proposed adaptations relating to section 4 of Cap. 87 would need to be further examined at a later stage. Members agreed.

Section 5 - Rights of Attorney General; and

Section 6 - Attorney General to act as Queen's Proctor

17. The Administration explained that proposed new section 5 of Cap. 87 was worded to ensure consistency with section 24(2) of the Hong Kong Reunification Ordinance which provided that those prerogative powers (including rights, privileges and immunities) exercisable by a public officer immediately before 1 July 1997, except for those that were inconsistent with the Basic Law, should on and after that date continue in existence, vest in the Chief Executive and be exercisable by the corresponding public officer in the HKSAR.

18. Miss Margaret NG considered that proposed new section 5, while allowing all rights which were enjoyed by the then Attorney General ("AG") immediately before 1 July 1997 to be exercisable by the Secretary for Justice ("SJ"), appeared to have the effect of "freezing" the rights of SJ, thereby inhibiting any further developments in that area. She said that contrary to the proposed new section, existing section 5 adopted the common law approach which allowed the court to interpret as to what the rights of the AG would be under that section. It also permitted changes to the rights of AG consequent upon changes to the rights of the AG of England. Miss Margaret NG pointed out that the same problems also arose in respect of proposed adaptation of section 6.

19. In response, the Administration said that in implementing the adaptation of laws programme, the guiding principle was that the provision when adapted should be consistent with the Basic Law and with Hong Kong's status as a Special Administrative Region of the People's Republic of China. Subject to this, the adaptation must be considered in the context of the particular Ordinance concerned and the adapted provision should as far as possible have the same legal effect as before. As regards sections 5 and 6 of Cap. 87, the adaptation proposals were to preserve the rights and duties of SJ as those of the then AG immediately prior to the reunification.

20. Miss Margaret NG said that the adaptation proposals for sections 5 and 6 simply followed the principle in section 24(2) of the Hong Kong Reunification Ordinance. There were problems with this mechanical way of adaptation. She pointed out that linking the rights and duties of SJ to those of the AG immediately before 1 July 1997, which in turn made reference to the rights of the AG of England and a large number of common law decisions would make it extremely difficult, as time elapsed, to ascertain such rights as they existed at precisely that point in time. Miss Margaret NG asked whether or not the rights and duties under sections 5 and 6 of Cap. 87 could be codified by express provisions to provide certainty and clarity in the law.

21. Mrs Miriam LAU said that a possible way to deal with section 6 might be to list out the relevant provisions of the Matrimonial Causes Ordinance (Cap. 179) by virtue of which the then AG exercised his rights and duties regarding any proceedings over which the courts of Hong Kong had jurisdiction. Miss Margaret NG pointed out that if the rights and duties of SJ were "frozen" at the time immediately before 1 July 1997 as proposed under the Bill, it might not be possible to amend section 6 of Cap. 87 consequential to any amendments made to the relevant provisions in Cap. 179 in future.

22. SASG expressed the view that one might approach the problem by making reference to Article 8 of the Basic Law which allowed for any amendment by the Legislature to existing laws. Therefore, it would ultimately be a matter for the Administration, the Legislature and the Judiciary to decide if there should be a reform of the role of SJ and to have it laid down in the law.

23. Concerning the suggestion of specifying the rights and duties of the then AG under sections 5 and 6 of Cap. 87, SASG cautioned about the risk of possible omissions and undesirable limitation of the existing rights, in view of the complexity of the rights exercisable by the AG.

24. Mr TSANG Yok-sing said that given the purpose of the present adaptation of laws exercise, amendments which fell outside the scope of law adaptation could not be dealt with under the Bill, such as proposals which had the effect of changing the substance of the legislation. He suggested that the Administration could be requested to follow up separately any issues identified by the Bills Committee which warranted further consideration.

25. After some further discussion, the meeting requested the Administration to respond to the following points in relation to the Legal Officers Ordinance (Cap. 87) at the next meeting -

In respect of sections 5 and 6, how did the Government understand the rights and duties exercisable by the AG before 1 July 1997?
Whether any of such rights and duties were considered to be inconsistent with the Basic Law and therefore had to be removed after 1 July 1997?
Whether the Government considered it appropriate not to follow the existing common law approach but to codify SJ's rights and duties under sections 5 and 6?

Pending a decision on (c) above, whether it was possible not to adapt sections 5 and 6 at this stage of the adaptation of laws exercise?

Adm

III. Next meeting

26. The next two meetings were tentatively scheduled for 16 December 1998 at 8:30 am, and 13 January 1999 at 8:30 am.

(Post-meeting note: The proposed meeting on 16 December 1998 has been cancelled, owing to a clash with another committee meeting. The next meeting will be held on 13 January 1999 at 8:30 am.)

27. The meeting ended at 10:30 am.

Legislative Council Secretariat
7 January 1999