Legislative Council
LC Paper No. LS 59/98-99
Paper for the House Committee Meeting
of the Legislative Council
on 13 November 1998
Legal Service Division Report on
Adaptation of Laws (No. 4) Bill 1998
Object of the Bill
To adapt certain Ordinances and their subsidiary legislation to bring them into conformity with the Basic Law and with the status of Hong Kong as a Special Administrative Region of the People's Republic of China.
LegCo Brief Reference
2. LP 5039/19/4C II of October 1998 from Department of Justice.
Date of First Reading
3. 11 November 1998.
Comments
4. A summary of the proposed amendments in the Bill and, the Ordinances and subsidiary legislation affected by those amendments are at the
Annex. Members may note that the Ordinances and subsidiary legislation set out at the Annex are related to legal practitioners either in public or private sector.
5. If enacted, the Bill, other than s. 9(b) of Schedule 2, will take retrospective effect from 1 July 1997 to ensure that there is consistency in the interpretation of all laws on and after 1 July 1997. The retrospective effect will not apply to provisions involving criminal offences or penalties. S. 9(b) of Schedule 2 relates to the amendment to the Legal Practitioners Ordinance (Cap. 159) empowering the Council of the Law Society to exercise powers in relation to its members under ss. 10D and 11 of the Mental Health Ordinance (Cap. 136). S. 9(b) of Schedule 2 will come into operation on the day appointed for the commencement of ss. 9 (in so far as it relates to the addition of s. 10D) and 10 of the Mental Health (Amendment) Ordinance 1997 (81 of 1997).
Public Consultation
6. There has not been any public consultation on the Bill.
Consultation with the LegCo Panel
7. No consultation with any LegCo Panel on the details of the Bill has been carried out.
Conclusion
8. We have raised certain queries with the Administration about the Bill to which the Administration has responded by a letter dated 10 November 1998. The response is being studied by the Legal Service Division. In the meantime, Members may wish to decide whether a Bills Committee be formed to study the details of the Bill.
Prepared by
Lam Ping-man, Stephen
Assistant Legal Adviser
Legislative Council Secretariat
11 November 1998
Bill/Adapt-4
Annex
Adaptation of Laws (No. 4) Bill 1998
Summary of the proposed amendments
Legal Officers Ordinance (Cap. 87)
Original Terms
|
Proposed Amendments |
Colony
(s. 2 and s. 4)
|
Hong Kong
(s. 2 and s. 4) |
of the Colony
(s. 10)
|
Reapled.
(s. 10) |
Governor
(s. 2, s. 7 and s. 11)
|
Chief Executive/
Chief Executive in Council
(s. 2, s. 7 and s. 11) |
Government of Hong Kong
(s. 2)
|
the Government
(s. 2) |
Matters in which legal officers may act, among other things : -
Any matter which relates to the official acts or omissions of :
(a) the naval, military or air authorities; or
(b) the Trade Commissioner for the United Kingdom or any territory forming part of the Commonwealth.
(s. 4(1))
|
Paragraph (a) is amended to read "the naval, military or air authorities of China in Hong Kong".
Paragraph (b) is repealed.
(s. 4(1)) |
The Attorney General shall be entitled in the courts of the Colony to the same rights as are enjoyed in England by the Attorney General of England.
(s. 5)
|
All rights which were enjoyed by the then Attorney General immediately before 1 July 1997 in the courts of Hong Kong, except for those that are inconsistent with the Basic Law, shall on and after that date be exercisable by the Secretary for Justice.
(new s. 5) |
The Attorney General shall exercise and discharge so far as regards any proceedings over which the courts of the Colony have jurisdiction by or by virtue of the Matrimonial Causes Ordinance (Cap. 179), the rights and duties which in England are customarily exercised and discharged by the Queens'Proctor.
(s. 6)
|
All rights and duties which were exercisable or dischargeable by the then Attorney General immediately before 1 July 1997 so far as regards any proceedings over which the courts of Hong Kong had jurisdiction by or by virtue of the Matrimonial Causes Ordinance (Cap. 179), except for those that are inconsistent with the Basic Law, shall on and after that date be exercisable or dischargeable by the Secretary for Justice.
(new s. 6) |
Attorney General's Chambers
Attorney General
Law Officer
Crown Prosecutor
Crown Solicitor
Law Draftsman
Solicitor General
Principal Crown Counsel
Deputy Crown Prosecutor
Deputy Crown Solicitor
Deputy Law Draftsman
Deputy Solicitor General
Deputy Principal Crown Counsel
Senior Assistant Crown Prosecutor
Senior Assistant Crown Solicitor
Senior Assistant Law Draftsman
Senior Assistant Solicitor General
Assistant Principal Crown Counsel
Assistant Crown Prosecutor
Assistant Crown Solicitor
Assistant Law Draftsman
Assistant Solicitor General
Senior Crown Counsel
Crown Counsel
Assistant Crown Counsel
(Schedule)
|
Department of Justice
Secretary for Justice
Law Officer
Director of Public Prosecutions
Law Officer (Civil Law)
Law Draftsman
Solicitor General
Principal Government Counsel
Deputy Director of Public Prosecutions
Deputy Law Officer (Civil Law)
Deputy Law Draftsman
Deputy Solicitor General
Deputy Principal Government Counsel
Senior Assistant Director of Public Prosecutions
Senior Assistant Law Officer (Civil Law)
Senior Assistant Law Draftsman
Senior Assistant Solicitor General
Assistant Principal Government Counsel
Assistant Director of Public Prosecutions
Assistant Law Officer (Civil Law)
Assistant Law Draftsman
Assistant Solicitor General
Senior Government Counsel
Government Counsel
Assistant Government Counsel
(new Schedule) |
(s. 10)
|
(s. 10)
|
Legal Practitioners Ordinance (Cap. 159)
Original Terms
|
Proposed Amendments |
Nil
|
In this Ordinance, a reference to the Department of Justice shall, in relation to any period of time before 1 July 1997, be deemed to be a reference to the then Legal Department.
(new s. 2(1A)) |
Subject to the provisions of this Ordinance, the Court or any judge thereof may exercise the same jurisdiction in respect of any person admitted to practise as a solicitor therein as may be exercised by the High Court, the Crown Court and the Court of Appeal respectively, or any division or judge thereof, in England, by virtue of section 50(2) of the Solicitors Act 1974 (1974 c. 47 U.K.), in respect of any solicitor or attorney admitted to practise therein.
(s. 3(3))
|
Repealed. |
Governor
(s. 74A)
|
Chief Executive
(s. 74A) |
Nothing in this Ordinance shall, among other things, prejudice or affect any rights or privileges of any member of Her Majesty's Overseas Judiciary, etc.
(s. 75)
|
The reference to "any member of Her Majesty's Overseas Judiciary" is repealed.
(s. 75) |
(The heading to Part IIIA)
|
(The heading to Part IIIA)
|
(s. 72B)
|
(s. 72B)
|
Legal Services Legislation (Miscellaneous Amendments) Ordinance (94 of 1997)
Original Terms
|
Proposed Amendments |
Governor
(s. 13)
|
Chief Executive
(s. 13) |
Governor's opinion
(s. 13)
|
opinion of the Chief Executive
(s. 13) |
Supreme Court
(s. 10(2)(2G) of the Legal Practitioners Ordinance in item 17 in Schedule 1)
|
High Court
(s. 10 (2)(2G) of the Legal Practitioners Ordinance in item 17 in Schedule 1) |
The powers conferred by section 98 of the Mental Health Act 1983 (1983 c. 20 U.K.) (Emergency powers) or section 99 of that Act (Appointment of a receiver) are exercisable by the Council of the Law Society in relation to certain lawyers.
(s. 26A(2A)(g) of the Legal
Practitioners Ordinance in item 28 in Schedule 1)
|
The references to "section 98 of the Mental Health Act 1983" and "section 99 of that Act" are replaced respectively by "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)".
(s. 26A(2A)(g) of the Legal
Practitioners Ordinance in item 28 in Schedule 1) |
(s. 7G(1), s 7I(2) and s. 7I(3) of the Legal Practitioners Ordinance in s. 2)
|
(s. 7G(1), s 7I(2) and s. 7I(3) of the Legal Practitioners Ordinance in s. 2)
|
Legal Practitioners (Amendment) Ordinance (27 of 1998)
Original Terms
|
Proposed Amendments |
Rules of the Supreme Court
(new s. 40M)
|
Rules of the High Court
(new s. 40M) |
Barristers (Qualification) Rules (Cap. 159 sub. leg.)
Original Terms
|
Proposed Amendments |
Attorney General's Chambers
(r. 2(1)(d), r. 3(a)(ii), r. 7(2), r. 9(1)(b) and r. 9(4))
|
Department of Justice
(r. 2(1)(d), r. 3(a)(ii), r. 7(2), r. 9(1)(b) and r. 9(4)) |
Solicitors (Trade Marks and Patents) Costs Rules (Cap. 159 sub. leg.)
Original Terms
|
Proposed Amendments |
Governor
(r. 2(1))
|
Chief Executive
(r. 2(1)) |
Official Solicitor Ordinance (Cap. 416)
Original Terms
|
Proposed Amendments |
Governor
(s. 2, s. 3 and s. 7)
|
Chief Executive
(s. 2, s. 3 and s. 7) |
Governor in Council
(s. 8)
|
Chief Executive in Council
(s. 8) |
Colonial Regulations
(s. 2(4))
|
Government regulations
(s. 2(4))
The term "government regulations" is defined to mean "the administrative rules known as the Government Regulations and any other administrative rules or instruments regulating the public service".
(new s. 2(9)) |
(s. 2(5) and s. 7(2))
|
(s. 2(5) and s. 7(2))
|
Admission and Regulation Rules (Cap. 159 sub. leg.)
Original Terms
|
Proposed Amendments |
(r. 8(3)(b) and r. 13)
|
(r. 8(3)(b) and r. 13)
|
Solicitors Disciplinary Tribunal Proceedings Rules (Cap. 159 sub. leg.)
Original Terms
|
Proposed Amendments |
(r. 4)
|
(r. 4)
|
Solicitors' Practice Rules (Cap. 159 sub. leg.)
Original Terms
|
Proposed Amendments |
(r. 2AA(2), r. 5C(3)(a)(i) and (ii) and (b), (4), (5) and (6)(b))
|
(r. 2AA(2), r. 5C(3)(a)(i) and (ii) and (b), (4), (5) and (6)(b))
|
Practicising Certificate (Barristers) Rules (Cap. 159 sub. leg.)
Original Terms
|
Proposed Amendments |
(Forms 1B and 4 in the Schedule)
|
(Forms 1B and 4 in the Schedule)
|
Barristers Disciplinary Tribunal Proceedings Rules (Cap. 159 sub. leg.)
Original Terms
|
Proposed Amendments |
(in the definition of and s. 2)
|
(in the definition of and s. 2)
|
Foreign Lawyers Practice Rules (Cap. 159 sub. leg.)
Original Terms
|
Proposed Amendments |
(s. 3(2))
|
(s. 3(2))
|
(The heading to the Schedule)
|
(The heading to the Schedule)
|