Bills Committee on Adaptation of Laws (No. 4) Bill 1998(Minutes) 13 Jan 99

Legislative Council

LC Paper No. CB(2)1342/98-99
(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 Wednesday, 13 January 1999 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
Hon Ambrose LAU Hon-chuen, JP
Members Absent :

Hon James TO Kun-sun

Public Officers Attending:

Mr Michael SCOTT: Senior Assistant Solicitor General
Ms Sherman CHAN: Senior Assistant Law Draftsman
Ms Kitty FUNG: 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. Confirmation of minutes of meeting on 7 December 1998
(LC Paper No. CB(2)993/98-99)

The above meeting minutes were confirmed.

II. Meeting with the Administration
(LC Paper Nos. CB(2)807/98-99; 851/98-99(01); 820/98-99(02); 1017/98-99(01) & (02); the Bill; marked-up copy of the Bill)

2. At the invitation of the Chairman, Senior Assistant Solicitor General (SASG) introduced the paper (LC Paper No. CB(2)1017/98-99(01)) which detailed the Administration's response to issues raised by the Bills Committee at the last meeting. The gist of the Administration's reply was as follows -

To try to codify the rights of the Secretary for Justice ("SJ") under sections 5 and 6 of the Legal Officers Ordinance (Cap. 87) ("Cap. 87") by reference, respectively, to the rights and powers of the Attorney General ("AG") and the Queen's proctor of England immediately before 1 July 1997 would be a very difficult task. Such rights and powers were derived both from statutes in England and from rather obscure and complex case laws over a long period of time. Furthermore, it would be outside the scope of the present adaptation of laws exercise to codify the rights and duties of SJ in Cap. 87.
The former AG of Hong Kong was a public officer defined under the Interpretation and General Clauses Ordinance (Cap. 1) and hence, by virtue of section 24 of the Hong Kong Reunification Ordinance, the common law and statutory powers under Cap. 87 previously exercisable by the former AG should continue to vest in the SJ, except for those that were inconsistent with the Basic Law. Accordingly, the Administration considered it appropriate to adapt sections 5 and 6 of Cap. 87 as proposed in the Bill and along the lines of the formula in section 24 of the Hong Kong Reunification Ordinance.
Should members consider certain areas of the common law regarding the rights of the SJ needed to be clarified, or legislative amendments to the law were necessary, the matter could be dealt with in a separate exercise at a later stage.

Freezing effect on the rights of SJ under sections 5 and 6 of Cap. 87

3. Miss Margaret NG maintained the view that a major difficulty with the proposed adaptation of sections 5 and 6 of Cap. 87 was that it had the effect of changing the substance of the existing legislation. Whereas the original provisions allowed the rights of the former AG of Hong Kong to develop together with the rights exercisable by the AG and the Queen's Proctor of England respectively, the new sections in their adapted form effectively limited, or "freezed", the rights of SJ as at a particular point in time, i.e. immediately before the reunification. It therefore altered the meaning of the law. She further pointed out that, as listed in the Administration's paper, the rights in the court of the former AG included a wide range of duties such as prosecutor in criminal prosecution, as guardian of public interest and as protector of charities etc. In particular, the former AG represented the Crown in the courts in all matters in which the rights of a public character came into question. He had the power to proceed ex-officio to represent the Crown to protect or enforce public rights. Miss NG said that the "freezing" effect as resulted from the proposed adaptation which inhibited development of the SJ's powers would arouse public conern as to whether or not the same duties to protect public rights would continue to be exercisable by the SJ.

4. Mr TSANG Yok-sing considered that it was reasonable to expect that changes to the rights of the AG of England would occur only slowly and gradually. Therefore, even if the present proposed adaptation of sections 5 and 6 of Cap. 87 resulted in freezing the SJ's powers as at 1 July 1997, the likelihood of SJ's powers getting out of touch with current developments would be minimal in the foreseeable future. He opined that given the objective of the present exercise was to adapt laws previously in force, codification of the rights and powers of SJ in Cap. 87 would be inconsistent with such purpose. Mr TSANG suggested that consideration might be given to adopting the proposals in the Bill at the present stage. He added that the laws should change with the times, and the laws could be reviewed and amended where circumstances warranted.

5. Mrs Miriam LAU suggested that an alternative way was to specify in sections 5 and 6 of Cap. 87 that the SJ's powers should be the same as that exercisable by the corresponding public officers in other common law jurisdictions, but she added that this might not comply with the adaptation principles in the strict sense. Another alternative was to adopt the Bill's proposals as a "stop-gap" measure, but the Administration should set a time-frame for introducing an amendment bill to deal with Miss Margaret NG's concerns.

6. The Chairman pointed out that sections 5 and 6 of Cap. 87 only dealt with certain aspects of the SJ's rights. He queried why the provisions as they now existed could not be retained. He enquired whether it was possible, as a matter of drafting, to combine the original sections with their adapted versions in the Ordinance.

7. In response, SASG advised that given the principles that the laws after adaptation had to be consistent with the Basic Law and to reflect the autonomy of Hong Kong as a Special Administrative Region ("SAR") of the People's Republic of China, to retain a specific linkage with English statute law would violate such adaptation principles. Referring to members' concern about the freezing effect on the SJ's powers, SASG said that as the Basic Law (Article 8) stated that the laws previously in force in Hong Kong, including the common law, should be maintained, it appeared that the common law powers of the SJ could continue to develop after the reunification. In other words, those powers of the AG of England which were developed by the courts could be recognized in the HKSAR and exercisable by the SJ. Regarding statute law, it would be up to the Administration and the legislature of the HKSAR to decide if any additional powers of the SJ should be provided for by statute.

8. Miss Margaret NG responded that the proposed adaptation of sections 5 and 6 of Cap. 87 was not done under a common law approach because the adaptation equated, by express words, the SJ's powers with that of the AG of England as at the reunification. In addition, whether or not the powers of the SJ could be developed by the court was not certain, depending on the court's own interpretation of the relevant provisions of the Basic Law regarding its jurisdiction to do so. She recognized that with all the associated problems, to achieve a simple and straight-forward adaptation of sections 5 and 6 of Cap. 87 would be a difficult task. Nevertheless, she considered that instead of "sweeping matters under the carpet", clarification of the SJ's powers to remove any kind of uncertainties by means of an amendment bill would be a preferred option. An approach outside the context of law adaptation would provide more scope and flexibility to address the concerns raised.

9. Miss Margaret NG added that she disagreed with the views given in paragraph 15 of the Administration's paper. She considered that sections 5 and 6 of Cap. 87 in their adapted form, rather than providing more certainty as to the current powers of the SJ and reducing the cost of litigation, was likely to give rise to more disputes and arguments by parties to litigation.

10. Echoing on the Chairman's view on retaining the original provisions of sections 5 and 6, Mr TSANG Yok-sing suggested that the experiences and practices of other common law jurisdictions should be studied. The Chairman requested the Administration to provide a research analysis of how different common law jurisdictions which were former British colonies dealt with similar provisions in their laws. ALA4 was also requested to give advice as appropriate.

Adm/ALA4

11. Mrs Miriam LAU was concerned that should sections 5 and 6 of Cap. 87 be left in their present form, disputes might arise as to whether the exercise by the SJ of those rights of the AG of England which only came into being after 1 July 1997 was consistent with the Basic Law and with the status of Hong Kong as an SAR. Miss Margaret NG opined that such a scenario could happen. She said that at the end of the day, disputes of that kind should be resolved by the court.

Comments from the Hong Kong Bar Association (LC Paper No. CB(2)851/98-99(01))

12. Members noted the Bar Association's proposal for a footnote to be inserted near the new sections 5 and 6 of Cap. 87 to set out the repealed provisions, which were the legal basis for the rights and duties of the then AG prior to 1 July 1997. Regarding this proposal, Senior Assistant Law Draftsman ("SALD") advised that the views of the Editor of the loose-leaf Edition of the Laws of Hong Kong would be sought. Miss Margaret NG said that the Bar Association's recommendation, even if it was accepted by the Administration, would not address her expressed conerns about the proposed adaptation.

Conclusion

13. The Chairman said that the Bills Committee had yet to conclude its views on this part of the Bill. He called upon the Administration to consider in detail members' various proposals. In the light of the foregoing discussion, the Administration was requested to respond to the following for further discussion at the next meeting -

Adm

To consider the feasibility of not adapting sections 5 and 6 of Cap. 87 at the present stage of the exercise, and to advise whether to do so would be inconsistent with the Basic Law and with the status of Hong Kong as an SAR of the PRC;
To advise whether allowing the SJ's rights and duties to develop on their own after reunification would be inconsistent with the Basic Law and with the status of Hong Kong as an SAR;
To consider the proposed alternative of dealing with sections 5 and 6 of Cap. 87 by way of an amendment bill, having regard to the view that the present proposals in the Bill were not straight-forward adaptations and would result in changing the substance of the law by "freezing" the rights and duties of the SJ;
To consider whether the original and proposed sections 5 and 6 of Cap. 87 could be put together in the Bill to address the concern about the "freezing" effect of sections 5 and 6 in their adapted form;
To consider the proposal that the adaptation of sections 5 and 6 of Cap. 87 would proceed as a stop-gap measure, on the condition that the Administration would undertake to introduce an amendment bill within a specified time-frame;
To report on the Administration's decision on the Bar Association's suggestion to insert a footnote setting out the repealed provisions near the new sections 5 and 6.
(The Bills Committee also discussed the "freezing effect" of the proposed adaptation of section 3(3) of the Legal Practitioners Ordinance (Cap. 159). Paragraphs 20 to 28 below refers.)

"Consultation Paper No. 41"

14. Referring to the Bills Committee's request made at the last meeting for a copy of "Consultation Paper No. 41" which was referred to in the Administration's paper (LC Paper No. CB(2)807/98-99(03) refers), SASG advised that the request could not be acceded to as the Consultation Paper was an internal working document. The Paper set out an agreed administration line relating to the adaptation of particular references. However, the Paper itself did not contain detailed rationale for the recommendations which had been agreed.

15. Miss Margaret NG opined that it was not proper for the Administration to make reference to certain documents in support of the proposals in the Bill and yet deprive the Bills Committee of the opportunity to study such documents.

Clause-by-clause examination of the Bill

Legal Officers Ordinance (Cap. 87)
Section 11

16. The Chairman informed the meeting that arising from the discussion of the Bills Committees on earlier adaptation bills, queries had been raised concerning the proposal to adapt the reference to "Governor" to "Chief Executive in Council" in certain Ordinances. The question was related to how Article 56 of the Basic Law should be interpreted. The Administration had been requested to explain in detail the justifications for the proposed adaptation. Members agreed to revert to this matter after a reply from the Administration was available.

Legal Practitioners Ordinance (Cap. 159)
Section 2

17. Members noted that the original Chinese reference to was adapted to . The Administration explained that "foreign" was a defined term under the Ordinance to refer to places other than Hong Kong and including the Mainland of China. For example, a "foreign firm" as defined in Cap. 159 included a law firm in the Mainland. As the Chinese term seemed to denote a reference to countries exclusive of China, the Administration therefore proposed to adopt which would more accurately reflect the legislative intent of the Ordinance. The proposal was consistent with adaptation of similar references in other Ordinances.

Proposed section 2(1A)

18. Members noted the above proposed new section which stated that "In this Ordinance, a reference to the Department of Justice shall, in relation to any period of the time before 1 July 1997, be deemed to be a reference to the then Legal Department." Miss Margaret NG queried whether this new section was necessary.

19. SALD replied that the proposed section was for avoidance of doubt. Under the Barristers (Qualification) Rules, the prescribed "qualifying period of active practice" for the purposes of qualifications for practising as barrister under section 31 of Cap. 159 included any period not less than nine months spent as a pupil in the Department of Justice. Since the equivalent of Department of Justice before the reunification was the former Legal Department, the proposed new section 2(1A) would remove any doubt about a person's qualification if part of his period of active practice was spent in the former Legal Department.

Section 3(3)

20. Members noted a new replacement provision of section 3(3) (circulated vide LC Paper No. CB(2)820/98-99(02)) proposed by the Administration which read -

"Subject to the provisions of this Ordinance, the Court or any judge thereof may, in so far as it is not inconsistent with the Basic Law, exercise the same jurisdiction in respect of any person admitted to practise as a solicitor in the Court as was exercisable immediately before 1 July 1997 by the then High Court or any judge thereof, as the case may be, in respect of any person admitted to practise as a solicitor in the then High Court." 21. SALD explained that the original proposal to repeal section 3(3) was based on the view that in so far as section 3(3) dealt with the jurisdiction of the Court in respect of persons admitted to practise as a solicitor in the Court, which was an inherent jurisdiction provided under common law, the proposed repeal would not affect the scope and exercise of such power by the Court. In addition, the law also provided for Disciplinary Tribunals to deal with unlawful conduct and practices of solicitors and barristers. However, after further consultation within the Administration and consideration of the views expressed by the Bar Association, it was felt that a replacement provision as proposed above would better clarify matters. SALD pointed out that the approach was similar to the proposed adaptation of sections 5 and 6 of Cap. 87.

22. Miss Margaret NG said that the newly proposed section 3(3) of Cap. 159 would lead to similar problems as those envisaged in the adaptation of sections 5 and 6 of Cap. 87, i.e. the jurisdiction of the Court would be frozen as at the reunification. Likewise to sections 5 and 6 of Cap. 87, Miss NG said that the Administration should consider dealing with section 3(3) of Cap. 159 by way of an amendment bill. She added that the Administration should also consider the Bar Association's proposal to localise the provisions by expressing the jurisdiction of the Court in clear words. Mr TSANG Yok-sing said that it might be easier to codify the Court's jurisdiction under this part than to codify the SJ's powers under sections 5 and 6 of Cap. 87.

23. SALD responded that provisions relating to the Court's jurisdiction appeared in other adaptation bills and a general approach had been agreed within the Administration. Having regard to members views, she agreed to consult the Judiciary on the newly proposed section 3(3) of Cap. 159 and the Bar Association's proposal.

Adm

24. Miss Margaret NG considered that the matter should not be decided soley by the Judiciary because the jurisdiction of the Court involved policy issues of great public concern.

25. Mr Ambrose LAU doubted the need to codify the Court's jurisdiction under section 3(3) of Cap. 159. He said that section 3(3) as it now stood did not precisely reflect the jurisdiction. He pointed out that the Bar Association's proposal to localise the existing provisions also carried the effect of freezing the Court's jurisdiction. He opined that a line must be drawn somewhere between the present adaptation exercise and a law amendment exercise. In his opinion, to go by the codification route would overstep the ambit of law adaptation. Mr LAU said that he had no objection to the adaptation proposals in respect of section 3(3) of Cap. 159 as well as sections 5 and 6 of Cap. 87.

26. The Chairman said that he did not feel that it was necessary to insist on a "purist" approach to deal with the present adaptation of law exercise as it could always give rise to arguments as to whether the adaptation principles had been strictly adhered to. Instead, a less rigid approach could be adopted. In his view, the Administration's proposals in respect of section 3(3) of Cap. 159 and sections 5 and 6 of Cap. 87 were acceptable in the context of the adaptation exercise.

27. Miss Margaret NG reiterated her stand that it was difficult to accept the Administration's proposals in respect of sections 5 and 6 of Cap. 87 and section 3(3) of Cap. 159 which effectively changed the meaning of the existing law. The resulting freezing effect on the powers of the SJ and the jurisdiction of the Court respectively was also inconsistent with the Basic Law (Articles 8 and 18) which allowed the continued development of the common law after the reunification.

28. The Chairman said that the Bills Committee would continue discussion at the next meeting, pending the Administration's response to the points raised by members.

Section 75(1)(a)

29. Members enquired of the reasons for the proposed repeal of the reference to "any member of Her Majesty's Overseas Judiciary". The Administration replied that the term was a colonial reference for which there was no direct substitute after the reunification. This part of the Ordinance dealt with the rights and privileges of specified classes of persons not to be bound by certain provisions of the law. Having consulted the Judiciary and the policy Bureaux, it was considered unnecessary for any exemption to be granted to this particular class of persons after the change of sovereignty.

30. Members were concerned whether the proposed repeal of "any member of Her Majesty's Overseas Judiciary" would deprive certain people of their existing statutory rights. For the sake of clarifying the legal implications, the Administration was requested to explain, in consultation with the Judiciary, the rationale for the proposed repeal of this reference; to whom the reference was referring to and whether there were people still retaining such status after the reunification.

Adm

Legal Services Legislation (Miscellaneous Amendments) Ordinance 1997 (2A)(g) in item 28 of Schedule 1

31. Members noted that the references to "section 98 of the Mental Health Act 1983 (1983 c.20 U.K.)(Emergency powers)" and "section 99 of that Act (Appointment of a receiver)" were proposed to be repealed and substituted with "section 10D of the Mental Health Ordinance (Cap. 136)(Court's powers in cases of emergency)" and "section 11 of that Ordinance (Appointment of committee)" respectively. The Administration was requested to explain the comparability between the relevant provisions at the next meeting.

Adm

Official Solicitor Ordinance (Cap. 416)
Section 2

32. Members requested the Administration to respond to the Bar Association's query that the meaning of the proposed term "government regulations" appeared to be wider than that of the original term of "Colonial Regulations".

Adm

III. Next meeting

33. The next meeting was scheduled for 27 January 1999 to discuss the Administration's response to the issues raised at this meeting and to continue with clause-by-clause examination of the Bill.

34. The meeting ended at 10:35 am.

Legislative Council Secretariat
24 February 1999