Bills Committee on Adaptation of Laws (No. 4) Bill 1998(Minutes) 27 Jan 99

Legislative Council

LC Paper No. CB(2)113/99-00
(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, 27 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

Members Absent :

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

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

Meeting with the Administration
(LC Paper Nos. CB(2)1165/98-99(01) to (03); the Bill; marked-up copy of the Bill)

Members proceeded with discussion of LC Paper Nos. CB(2)1165/98-99(01) and (02), which set out the issues raised by members at the last meeting on 13 January 1999 and the Administration's response to those issues respectively.

Legal Officers Ordinance (Cap. 87)
Sections 5 and 6

2. The Administration's reply explained that the rights and powers of the former Attorney General of Hong Kong before 1 July 1997 under sections 5 and 6 of Cap. 87 derived from both the common law and statutes in England. It was considered inconsistent with the Basic Law if the powers of the Secretary of Justice continued to rely on a foreign legislature, namely England, after the reunification. The adaptations as proposed in the Bill were therefore necessary. In addition, by virtue of Article 8 of the Basic Law, the laws previously in force in Hong Kong should be maintained and subject to amendment by the Hong Kong legislature. Hence the statutory rights of the Secretary for Justice were not frozen so far as Hong Kong was concerned.

3. Senior Assistant Law Draftsman (SALD) advised that after consulting the editor of the loose-leaf edition of the Laws of Hong Kong, the Administration accepted the Hong Kong Bar Association's suggestion to insert a footnote setting out the repealed provisions near the new sections 5 and 6 of Cap.87 to enhance clarity.

4. Members supported the proposed amendments.

Legal Practitioners Ordinance (Cap. 159)
Section 3(3)

5. Government Counsel (GC) informed members that the Judiciary Administrator (JA) had confirmed that the new replacement provision of section 3(3) (previously tabled by the Administration and circulated to members of the Bills Committee vide LC Paper No. CB(2)820/98-99(02)) proposed by the Administration was acceptable. The Administration considered that the replacement provision would not affect the existing inherent jurisdiction of the Court in respect of solicitors.

6. Members endorsed the proposed replacement provision of section 3(3) of Cap. 159.

Section 75(1)(a)

7. GC said that JA had replied that it would not be appropriate for judges to advise on the meaning of "any member of Her Majesty's Overseas Judiciary". However, JA had also pointed out that under a Compensation Scheme organized by the Overseas Development Administration in the UK, a member of Her Majesty's Overseas Civil Service or Her Majesty's Overseas Judiciary was eligible to receive compensation under certain conditions. Hence, it appeared that the benefits available to this category of persons were offered directly by Her Majesty's Government in UK, and such matters would not be affected by the deletion of the said reference to "any member of Her Majesty's Overseas Judiciary" in section 75(1)(a).

8. SALD added that as the expression "Her Majesty's Overseas Judiciary" was a colonial reference, it was considered that the rights or privileges provided to this specified class of persons under the Ordinance should no longer be available after the re-unification.

9. Miss Margaret NG agreed that since the status as a member of Her Majesty's Overseas Judiciary was inconsistent with the status of Hong Kong as a Special Administrative Region of the People's Republic of China and matters relating to this class of people had been dealt with after the handover, adaptation of the said reference was not required.

10. Members supported the proposed repeal of the reference to "any member of Her Majesty's Overseas Judiciary" in section 75(1)(a).

Legal Services Legislation (Miscellaneous Amendment) Ordinance 1997 (LSLO)

11. It was proposed under section 9 of Schedule 2 to the Bill that references in LSLO (in item 28 in Schedule 1 to LSLO) to sections 98 and 99 of the Mental Health Act 1983 (the UK Act) should be replaced by references to sections 10D and 11 of the Mental Health Ordinance (Cap. 136) respectively.

12. In reply to Miss Margaret NG's enquiry about the proposed adaptations, SALD said that prior to the passage of the Mental Health (Amendment) Ordinance 1997 (81 of 1997) (MHAO), the Court of First Instance (previously the High Court) had dual jurisdiction in the management of the affairs of a person suffering from mental disorder, viz. under Part VII of the UK Act (which applied to Hong Kong by virtue of section 12(4) of the High Court Ordinance) and Part II of the Mental Health Ordinance. The former empowered the Court to appoint a receiver to manage and administer the property and affairs of the person, whilst the latter gave a similar power to the Court to appoint a committee of the estate of the person. This practice had caused confusion to the applicants in deciding which procedure to follow. To simplify matters, MHAO repealed section 12(4) of the High Court Ordinance and amended Part II of the Mental Health Ordinance to incorporate certain provisions of Part VII of the UK Act. When the repeal of section 12(4) of the High Court Ordinance came into operation, Part VII, including sections 98 and 99, of the UK Act would no longer apply to Hong Kong, and references in LSLO to sections 98 and 99 of the UK Act (appointment of a receiver) should be replaced by references to sections 10D and 11 of the Mental Health Ordinance (appointment of a committee) respectively. The new sections 10D and 11 of the Mental Health Ordinance as amended by MHAO were intended to provide the Court with powers corresponding to those under sections 98 and 99 of the UK Act.

13. Members supported the proposed adaptations.

Official Solicitors Ordinance (Cap. 416)
Section 2

14. SALD informed members that it was agreed by the Bills Committee on Adaptation of Laws Bill 1998 that the term "Colonial Regulations" should be adapted as "Public Service (Administration) Order" with the latter term being properly defined to refer to specific names of the instruments concerned. Therefore, the Administration would move a Committee Stage amendment (CSA) to this Bill to ensure a consistent approach being adopted in respect of the said term.

Outstanding issues arising from discussions at previous meetings

Legal Officers Ordinance (Cap. 87)
Section 4(1)(b) - "Crown" to "Government"

15. Senior Assistant Solicitor General responded to the query previously raised by Miss Margaret NG regarding whether the original reference to "Crown" in this subsection meant anything more than "Crown in right of the Government of Hong Kong", and if so, the proposed adaptation of "Crown" to "Government" might not be appropriate. He said that the Civil Litigation Unit of the Department of Justice had confirmed that according to its information there had been no instances in the past in which Legal Officers of the Hong Kong Government had acted for the Crown in right of the UK Government. Similarly, the Hong Kong SAR Government would not be acting in matters in which the Central People's Government was interested in. It followed that Legal Officers of the Hong Kong Government would only act for the SAR Government and not for the Central People's Government. Therefore, in the particular context of section 4(1)(b) of the Legal Officers Ordinance, "Crown" should be adapted to "Government".

16. Members agreed to the proposed adaptation.

Section 11 - "Governor" to "Chief Executive in Council"

17. Members noted that the proposed adaptation of the same reference also appeared in the earlier Adaptation of Laws Bills which were being considered by the relevant Bills Committees. Members agreed to adopt the same approach to ensure consistency.

Continuing with clause-by-clause examination of the Bill

18. Members examined the remaining parts of the Bill clause-by-clause and supported the proposed adaptations.

Way forward

19. The Chairman requested the Administration to reply to the Bills Committee in writing on the outstanding issues discussed at this meeting, and to submit relevant CSAs to be moved by the Administration to the Bill for members' consideration.

20. There being no other business, the meeting ended at 9:20 am.

Legislative Council Secretariat
29 April 1999