Legislative Council

LC Paper No. CB(2) 229/99-00
(These minutes have been seen
by the Administration)

Ref : CB2/BC/19/98

Bills Committee on
Interpretation and General Clauses (Amendment) Bill 1999

Minutes of meeting
held on Thursday, 9 September 1999 at 2:30 pm
in Conference Room A of the Legislative Council Building

Members present :

Hon Albert HO Chun-yan (Chairman)
Hon Martin LEE Chu-ming, SC, JP
Hon Margaret NG
Hon Jasper TSANG Yok-sing, JP

Members absent :

Hon Ronald ARCULLI, JP
Hon HUI Cheung-ching

Public Officers attending :

Mr Michael SCOTT

Deputy Principal Government Counsel (Legal Policy)

Mr Thomas LEUNG

Senior Government Counsel (Law Reform Commission)

Mr Michael LAM

Acting Senior Government Counsel (Law Drafting)

Clerk in attendance :

Mrs Sharon TONG

Chief Assistant Secretary (2)1

Staff in attendance :

Mr KAU Kin-wah

Assistant Legal Adviser 6

Mr Raymond LAM

Senior Assistant Secretary (2)5

I. Confirmation of minutes of meeting held on 21 June 1999
(LC Paper No. CB(2) 2725/98-99)

The minutes were confirmed subject to Miss Margaret NG's proposed addition of "mentioned in the Bill" after "no document" in the fourth line of paragraph 12.

II. Meeting with representatives from the Administration
(LC Paper No. CB(2)2733/98-99(01))

2. Deputy Principal Government Counsel (Legal Policy) (DPGC(LP)) said that the Administration's paper sought to respond to the issues raised by members at the last meeting on 21 June 1999, including the question of whether each of the provisions in subsections (2)(a) to (2)(i) of proposed section 19A was a legislative reform or codification of existing rules.

Scope of proposed section 19A

3. Miss Margaret NG said that after carefully studying the Interpretation and General Clauses (Amendment) Bill 1999 (the Bill) and the Law Report Commission (LRC)'s Report on Extrinsic Materials as an Aid to Statutory Interpretation, she had come to the conclusion that the Bill was neither necessary nor desirable. The scope of proposed section 19A(1) was very wide, as it covered "any material" not forming part of the Ordinance which was capable of assisting in the ascertainment of the meaning of a provision. With the provision "without limiting the generality of subsection (1)" in proposed section 19A(2), the materials listed in the latter would only be some of the examples which the court might consider. After examining the LRC Report, she could not find any strong justification for the Bill. DPGC(LP) responded that the scope of proposed section 19A(1) was limited by the existing common law principles and by the discretion of the court, which should not go outside accepted areas of admissibility.

4. Mr Martin LEE considered it more appropriate for the court to decide the materials to be used in construing an ambiguous provision. He added that the Administration had stated in paragraph 14 that proposed section 19A(2) set out a non-exhaustive list of extrinsic material that could be used in interpretation. Under the circumstances, the list would not be very useful. Even with the list, a counsel would still have to look for other materials that might be useful.

Codification of common law principles and legislative reform

5. Referring to the arguments for legislative reform as stated in paragraph 13 of the Administration's paper, Mr Martin LEE made the following points -

1. according to paragraph 8 of the Administration's paper, explanatory memorandum was already admissible according to paragraph 1425 of the Halsbury's Laws of England 4th Edition., Vol. 44(1);

2. it could be noted from paragraphs 8, 9 and 10 of the Administration's paper that materials other than the speech of the promoter of a Bill in the Second Reading debate had been admitted in the interpretation of statutory provisions;

3. as regards the Administration's arguments in paragraph 13(5) that legislation could set out materials that were prima facie reliable and omit generally unreliable extrinsic materials, the court could exercise its discretion correctly to achieve these;

4. while paragraph 13(6) stated that legislation could deal with unresolved matters such as the problem of per incuriam and its application to prior legislation, per incuriam cases were not dealt with in the Bill. Cases of a later time were most likely to be held by subsequent courts to overrule earlier ones. There was a developing trend of making more and more exceptions to the exclusionary rule. There would not be any problem if no codification was made in the area;

5. on paragraph 13(7), there was no need for legislative amendment, as the use of a purposive approach was already mandated by section 19 of Cap. 1.

6. Mr Martin LEE said that the interpretation of statutes was a developing area in the law. Without the codification proposed in the Bill, the common law in Hong Kong would develop with that in other jurisdictions. According to the paper provided by the Administration, there seemed to be a number of cases in which judges in the United Kingdom and other places had departed from the rule of exclusion. It could be noted that even before Pepper v Hart, the judges in other jurisdictions had already looked at various documents in construing a particular statutory provision. If Hong Kong was to follow Australia in codifying the rules of interpretation, it would not be able to benefit from the development of common law in other jurisdictions.

7. DPGC(LP) responded that codification was desirable as it would bring about coherence and clarification of areas of confusion in the law. It would save the need to refer to the common law to try and sort out what might be a confused situation. For example, proposed section 19(2)(d) would remove doubts about whether the principle in Ellerman Lines Ltd v Murray or Salomon v Customs and Excise Comrs would prevail in the admissibility of treaties. The common law was also unclear as to the admissibility of official reports from other jurisdictions. It would be more costly for the issues to be determined by the court. Litigation was generally more costly than legislation. The Bill was not the first example of codification of law in Hong Kong. Codification would not prevent further development of the law, which would be preserved by proposed section 19A(7), which stipulated that "the provisions of this section shall be in addition to and not in derogation from the common law applicable to the interpretation of a provision of an Ordinance". It would clarify areas of doubt and remove uncertainty. The Bill would save potential argument costs in litigation without being prejudicial to the development of common law.

8. Miss Margaret NG said that the materials listed in proposed section 19A(2) would each have to be argued as to how it was to assist the court in interpretation. It would widen the scope of materials which legal practitioners would examine. She expressed doubt about whether it would save time. It would create hindrance instead of providing assistance. While she was not opposed to the proposed codification, she considered that it was not the right time for introducing the Bill.

9. The Chairman said that the major objective of codification should be to clarify the laws with uncertainty, not saving of cost. He considered that the situation regarding the admissibility of materials for statutory interpretation was not very confusing. Without the proposed codification, legal practitioners could still easily refer to Halsbury's Laws of England or the cases quoted in the Administration's paper. As the position regarding the admissibility of materials listed in proposed section 19A was clear, codification would not provide much assistance. Moreover, the proposals in the Bill were more than codification. It proposed some innovation to Hong Kong, as was stated in paragraph 6 of the Administration's paper. He considered it not the right time to introduce the changes proposed in the Bill.

10. DPGC(LP) said that the Bill only sought to set out the materials that were prima facie admissible. The utility in each particular case would depend on the circumstances and the court would exercise its discretion. The Bill removed doubt about whether a particular item was admissible as extrinsic material for interpretation. It also removed the need to cite the authority in the presentation of extrinsic material. Miss Margaret NG said that there was a trend of making more materials admissible in statutory interpretation. If there was doubt about whether certain materials were admissible as an aid to interpretation, that doubt should be resolved by the court instead of by the enactment of legislation. In her view, there was no indication of how the materials listed in proposed section 19A(2) would provide assistance in the interpretation of a provision.

Committee reports and official record of proceedings of the Legislative Council (LegCo)

11. Referring to paragraph 10 of the Administration's paper, the Chairman expressed reservations that all committee reports of LegCo should be admissible as extrinsic materials for statutory interpretation. He considered that such committee reports tended to confuse rather than assist the judges in interpretation. He added that the proposal in paragraph 12 of the Administration's paper on the admissibility of official record of proceedings of LegCo was also undesirable. Even if such material could provide assistance, it usually tended to be in favour of the promoter of the Bill. He therefore considered proposed sections 19A(2)(g) and 19A(2)(i) unacceptable.

12. DPGC(LP) responded that if some neutral and relevant material in the official record of proceedings of LegCo was determined by the court to reflect the intent of the legislature, the admission of such material might be advantageous. The Chairman asked whether all official record of proceedings would become admissible and the court would then have no discretion in this respect, if the Bill was passed. In response, DPGC(LP) said that if the material was relevant and reliable, the court could exercise its discretion to take it into account. As the materials listed in proposed section 19A(2) "might be considered" by the court, much discretion was still left to the court.

Impact of the Bill on litigation cost

13. Referring to paragraph 16 of the Administration's paper, Mr Martin LEE commented that the Bill would not result in additional costs only if its scope was not wider than that of Pepper v Hart. If the scope of the Bill was wider than that of Pepper v Hart, it could result in an increase in cost, as it would be necessary to study other materials. It could be noted from paragraph 18(i) of the Administration's paper that after the enactment of section 15AB of the Acts Interpretation Act 1901 in Australia on which the Bill was based, the counsels and legal representatives in Australia had spent more time in cases until the court found it necessary to put clear and appropriate limits on the use of ministerial speeches. Unless there were limits put by the court on the use of materials, the Australian model, if adopted, could result in increase in time costs.

14. Miss Margaret NG supported Mr LEE's view. She said that proposed section 19A(2) would only result in escalation of costs, as widespread research would have to be conducted outside the hearing by the counsel or legal representative.

Ordinary meaning of a provision

15. Referring to paragraph 19 of the Administration's paper, Mr Martin LEE said that while a counsel might argue that the ordinary meaning conveyed by the text of a provision would lead to a result that was absurd or unreasonable, the other side might say that there were extrinsic materials in support of the ordinary meaning. In this connection, Miss Margaret NG said that if the meaning of a provision in a piece of legislation was clear, a counsel should not go outside the wording of the provision in interpreting its meaning. It was a fundamental principle that the law should be clear in its words. If a provision appeared to be clear and ascertainable, one should not look for materials to disprove its ordinary meaning. Forensically, resort to extrinsic material would not assist in confirming the meaning of a provision. When a provision had a plain meaning, reference should not be made to extrinsic materials.

Official reports from other jurisdictions

16. Responding to Mr Martin LEE's question on the reference to official reports from other jurisdictions in paragraph 6 of the Administration's paper, DPGC(LP) said that the proposal involved the admission of an official report from other jurisdictions as an extrinsic aid to interpretation, if the report dealt with a piece of overseas legislation on which a piece of Hong Kong legislation was modelled, regardless of whether the legislature in Hong Kong had examined the report. Senior Government Counsel (Law Reform Commission) (SGC(LRC)) added that an example of such was the previous amendment to legislation relating to hearsay evidence in civil proceedings in Hong Kong. At that time, the Law Reform Commission (LRC) of Hong Kong studied the reports of the law commissions of England and Scotland before producing its own report on the subject. The proposals in the LRC report of Hong Kong were adopted and legislation was subsequently enacted to implement the proposals. Proposed section 19A(2)(c) would allow reference to be made to the English and Scottish law commission reports. The Scottish Law Commission report might be put forward by a counsel who argued that the Hong Kong LRC misunderstood the Scottish Law Commission report. Miss Margaret NG disagreed. She said that any kind of opinion could be incorporated in a submission for argument. However, the presentation of materials as evidence was a different matter. It would take a long time to argue whether a certain material could be presented as evidence. She added that whether the Hong Kong LRC had misunderstood the Scottish LRC report was unimportant. DPGC (LP) said that it would become evidence to the extent that it was relevant and reliable in the circumstances of the case. If a piece of Hong Kong legislation was based on the recommendations of the Australian LRC, the recommendations of the Australian LRC would prima facie be relevant.

17. Miss Margaret NG considered that the evidence of legislative intent should be derived from discussions in the legislative process of Hong Kong, or the LRC report of Hong Kong rather than an overseas report. DPGC(LP) said that the Australian LRC report would form part of the evidence to which the court and counsel could refer. The provision only provided that in the circumstances of the case, it might be relevant. If a piece of Hong Kong legislation was based on the Australian LRC report, it would be permissible under the provision to refer directly to the Australian LRC report. Proposed section 19A(2)(c) was suggested by LRC of Hong Kong in view of the doubts about whether it was appropriate to refer to official reports of other jurisdictions unless they dealt with overseas legislation on which the Hong Kong legislation was modelled. Miss Margaret NG said that such a reason should not justify the enactment of legislation. DPGC(LP) said that there was already one example in the laws of Hong Kong.

18. SGC(LRC) said that not all legislative proposals were based on LRC study in Hong Kong. The responsible policy bureaux would sometimes themselves examine research reports in overseas jurisdictions before introducing a bill into LegCo. Proposed section 19A(2)(c) sought to allow reference to be made to the relevant overseas research reports in the statutory interpretation of a provision. Miss Margaret NG said that the court might not be interested in examining an overseas LRC report which had not been considered by LegCo.

19. Mr Martin LEE shared the views of Miss Margaret NG. He said that the court would look at the intention of the legislature in passing the legislation. If the Administration gathered the proposals from the reports of a number of jurisdictions and combined them into a bill without informing LegCo of the reference to such materials, reference to such materials would not assist the court in ascertaining the legislative intent. DPGC(LP) responded that the Administration would be unwise if it did not refer to the source or rationale of an overseas report in defending the necessity for legislation. If the recommendation for legislation was derived from an overseas LRC report, the court would consider it to be prima facie relevant and take it into account. Proposed section 19A(2)(c) would remove doubts about whether reference could be made to official reports from other jurisdictions.

20. Miss Margaret NG said that in deciding whether to adopt a legislative proposal, the major consideration should be whether the proposal would be to the benefit of Hong Kong and whether the policy was right. Whether it was to the benefit of some other jurisdictions and the origin of such a proposal were not issues of concern. Even if an overseas report was relevant in terms of history, it might not be so in terms of interpretation. She would not support the Bill, as it would end up inviting people to go into all sorts of academic pursuits which might not be of real assistance in interpretation.

21. The Chairman said that official reports of other jurisdictions would usually not reflect the legislative intent, as legislators might not have relied on that report. Reference to such reports might only result in confusion. Mr Martin LEE added that if the LRC of New Zealand produced a report on a certain subject and the parliament only partially accepted the proposals in the report, it would be irrelevant for the Hong Kong court to examine the report even if the Hong Kong legislation was identical to that in New Zealand.

Way forward

22. Before members drew a conclusion on the Bill, DPGC(LP) requested that another meeting be convened, so that some other representatives from the Administration could reinforce the Administration's arguments for the Bill. While considering that the Administration had already presented all its views clearly to the Bills Committee, members agreed that a further meeting of the Bills Committee be held to meet with the Administration.

III. Date of next meeting

23. Members agreed to schedule the next meeting for 4 October 1999 at 8:30 am.

(Post-meeting note : At the request of the Administration, the Bill was subsequently held abeyance and the meeting was cancelled.)

24. The meeting ended at 4:00 pm.

Legislative Council Secretariat
27 October 1999