LC Paper No. CB(2) 2173/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/12/98

Members Present :

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

Members Absent :

Hon Andrew WONG Wang-fat, JP
Hon James TO Kun-sun

Public Officers Attending :

Ms Roxana CHENG

Senior Assistant Solicitor General

Mrs N DISSANAYAKE

Senior Assistant Law Draftsman

Mr Lawerence PENG

Senior Government Counsel

Clerk in Attendance :

Mr LAW Wing-lok

Chief Assistant Secretary (2)5

Staff in Attendance :

Mr Jimmy Y T MA, JP

Legal Adviser

Miss Anita HO

Assistant Legal Adviser 2

Miss Mary SO

Senior Assistant Secretary (2)8

I. Meeting with the Administration
(LC Paper No. CB(2) 1622/98-99(01))

1. At the invitation of the Chairman, Senior Assistant Solicitor General (SASG) said that the reasons for the proposed adaptation of the references to "Crown" as "Government" in sections 56(2)(a), 59, and 83S of the Criminal Procedure Ordinance (Cap. 221), rule 64(2) of the Criminal Appeal Rules and rule 2 of the Criminal Procedure (Representation) Rules in the context of the Crown being a party to criminal proceedings were as follows:

- the Secretary for Justice (SJ) and the Solicitor General were both law officers of the Government (the executive authorities of the Hong Kong Special Administrative Region (HKSAR) by virtue of Article 59 of the Basic Law (BL59)) who acted as the Government's chief legal advisers and had important responsibilities in relation to the law and its enforcement;

- BL63 provided that the Department of Justice (D of J) of the HKSAR should control criminal prosecutions, free from any interference; and

- section 2 of Schedule 8 of the Interpretation and General Clauses Ordinance (Cap.1) stipulated that any reference to Her Majesty, the Crown, the British Government or the Secretary of State (or to similar names, terms or expressions) in contexts other than title to land in the HKSAR, affairs for which the Central People's Government had responsibility or the relationship between the Central Authorities and the HKSAR should be construed as a reference to the Government of the HKSAR. Schedule 8 to Cap.1 was added by the Hong Kong Reunification Ordinance which reflected the principles of interpretation set out in Annex 3 of the decision of the Standing Committee of Standing Committee of the National People's Congress on 23 February 1997.

2. The Chairman pointed out that Schedule 8 of Cap. 1 was not applied to all of the ordinances prevailing in Hong Kong. She cited section 66 of Cap.1 as an example. She further queried about the adaptation of the references to "Crown" as "Government" in Cap. 221 and its subsidiary legislation, having regard to the fact that section 19 of the Hong Kong Reunification Ordinance provided that criminal proceedings which before the reunification were brought by, in the name of or against the Crown might after the reunification be brought by, in the name of or against the HKSAR and not the Government of the HKSAR.

3. In reply, SASG said that as the D of J of the HKSAR was responsible for all prosecutions in Hong Kong, it was therefore considered appropriate to adapt "Crown" as "Government" in the context of the Government being a party to criminal proceedings. To illustrate this, she referred members to section 56(2)(a) of Cap. 221 which stipulated that upon the trial of any person charged with an offence, the prosecution would not be entitled to the right of reply on the ground only that the Attorney General or the Solicitor General appeared for the Crown at the trial. SASG further said that this adaptation would not alter the fact that prosecutions were brought on behalf of the HKSAR, as provided under section 19 of the Hong Kong Reunification Ordinance.

4. The Chairman said that prosecutors had never represented the Government in the conduct of criminal cases in the past. To adapt "Crown" as "Government" would have the effect of changing the substance of the existing legislation, which was against the principle of the adaptation exercise. Moreover, such adaptation would give a wrong connotation that prosecutors only acted in the interest of the Government rather than the public. This was at variance with the statement made by the Director of Public Prosecutions upon the anniversary of his appointment on 15 October 1998 which mentioned that prosecutors should represent the HKSAR, and not the Government, in the conduct of criminal cases. The Chairman further said that BL59 and BL63 lacked sufficient ground to form the basis for adapting the references to "Crown" as "Government" in Cap. 221 and its subsidiary legislation. BL59 merely stipulated that the Government of the HKSAR was the executive authorities of the Region. In respect of BL63, the provision merely stipulated that the D of J should control criminal prosecutions, free from any interference. There was no evidence to support the claim that the D of J should represent the Government to prosecute an accused person. If this was true, this function should be incorporated in BL62 under which the powers and functions which could be exercised by the Government of the HKSAR were stipulated.

5. At the request of the Chairman, the clerk undertook to forward a copy of the report mentioned in paragraph 4 above for members' reference.

6. As the proposed adaptation touched on an important criminal prosecution principle, the Chairman suggested that the Legal Adviser be requested to give an opinion on the subject matter. The Administration would be invited to comment on the Legal Adviser's opinion when available. Members agreed.

7 Members raised no queries on the reasons given by the Administration in respect of adapting i) the reference to"Crown" in sections 9(M)1 and 102(4) of Cap. 221 as "Government" in the context of court forfeiture; ii) the reference to "Queen" in Forms II, III, XVI and XVII of the Criminal Appeal Rules as "Government" in the context of court forfeiture; and iii) the references to "in the peace of the Queen" in section 19 of Cap. 221 as "within the jurisdiction of the Hong Kong courts" as set out in the paper.

8. On the proposed adaptation of "imperial enactment" as "national law applying in Hong Kong" in Rules 4 and 5 of the Indictment Rule of Cap. 221, SASG said that there was a need for such adaptation in order that the Indictment Rules would cover any national laws applying to the HKSAR so along as they created criminal offences triable in Hong Kong courts. This was to ensure that the same protection was available to all defendants regardless of whether they were charged under an Ordinance or a national law.

9. Assistant Legal Adviser 2 (ALA2) said that by virtue of Rule 4 of the indictment Rules as would be amended and section 9(3) of Cap. 221, the trial of criminal offences under a national law applying in Hong Kong would adopt English practice and procedure if no such rules and orders were made by the Hong Kong Criminal Procedure Rules Committee. ALA2 pointed out that apart from the fact that section 9(3) was inconsistent with the Basic Law and with the status of Hong Kong as a Special Administrative Region of the People's Republic of China, there would be practical difficulties for the Hong Kong courts to ascertain which English practice and procedure to follow as time elapsed. The law would be uncertain and unpredictable. To avoid these problems, a better approach would be to wait until that Committee had completed work on drawing up the rules and orders regulating the practice and procedure under Cap. 221. ALA2 further said that adaptation should be made to section 9(3) as BL23 did not make reference to misprision of treason.

10. In reply, SASG said that in so far as section 9(3) of Cap. 221 relating to trials for treason or misprision of treason, the Administration considered it had BL23 implication and would deal with its adaptation in a separate exercise. Apart from this, the Administration took the view that it was not appropriate to repeal section 9(3) as such repeal might create a lacuna in the law. SASG further said that if a national law that applied to Hong Kong did create an offence that was triable in Hong Kong courts, section 9(3) and the Indictment Rules should (as a matter of adaptation) apply to that offence, in the same way as they previously applied to British laws that apply in Hong Kong before 1 July 1997.

11. The Chairman said that she was inclined to accept the Administration's explanation for not repealing section 9(3) of Cap.221, notwithstanding the fact that the courts in Hong Kong had to rely on English practice and procedure. She said that in the adaptation exercise of the Legal Officers Ordinance (Cap. 87), the rights and powers of the SJ followed that of the former Attorney General (AG) of Hong Kong before the reunification, which in turn made reference to the rights and powers of the AG of England. Members concurred with the Chairman.

12. In reply to Mrs Miriam LAU's enquiry, SASG said that apart from section 9(3) of Cap. 221, adaptation to other provisions which had BL23 implications in the Bill remained outstanding.

13. The Chairman suggested that the Administration should explain the reasons for not adapting certain provisions in the Bill in their speech during the resumption of Second Reading debate on the Bill. In the meantime, the Administration should provide members with a list setting the outstanding items for adaptation. SASG agreed with the Chairman's suggestion.

III. Date of next meeting

14. Members agreed that the Bills Committee would next meet on Thursday, 14 May 1999 at 8:30 am to continue discussion with the Administration.

15. There being no other business, the meeting ended at 9:25 am.


Legislative Council Secretariat
1 June 1999