Panel on Administration of Justice and Legal Services ( Minutes ) 20 April 99

Legislative Council

LC Paper No. CB(2)2893/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/PL/AJLS

Legislative Council

Panel on Administration of Justice and Legal Services

Minutes of meeting
held on Tuesday, 20 April 1999 at 4:30 pm
in Conference Room A of the Legislative Council Building Members Present:

Hon Margaret NG (Chairman)
Hon Jasper TSANG Yok-sing, JP (Deputy Chairman)
Hon Albert HO Chun-yan
Hon Martin LEE Chu-ming, SC, JP
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP

Members Absent :

Hon James TO Kun-sun
Hon Emily LAU Wai-hing, JP

Public Officers Attending :

Item III
Department of Justice
Mr Peter CHEUNG, JP: Deputy Director (Administration)
Mr Anson CHAU: Chief Management Services Officer
Judiciary
Mrs Betty CHU: Acting Deputy Judiciary Administrator (Administration)
Mr W K LEE
Project Manager JISS Project Management Unit: Legal Aid Department
Mr CHAN Shu-ying: Director of Legal Aid
Ms Lolly CHIU: Policy and Administration Coordinator
Chief Secretary for Administration's Office
Ms Rosanna LAW: Assistant Director of Administration
Item IV
Legal Aid Department
Mr CHAN Shu-ying: Director of Legal Aid
Ms Lolly CHIU: Policy and Administration Coordinator
Chief Secretary for Administration's Office
Ms Rosanna LAW: Assistant Director of Administration
Item V
Department of Justice
Mr Andrew BRUCE, SC: Senior Assistant Director of Public Prosecutions
Mr CHEUNG Wai-sun: Senior Assistant Director of Public Prosecutions

Clerk in Attendance :

Mrs Percy MA: Chief Assistant Secretary (2)3

Staff in Attendance :

Mr Jimmy MA, JP: Legal Adviser
Mr Paul WOO: Senior Assistant Secretary (2)3

I. Confirmation of minutes of meeting
(LC Paper No. CB(2)1690/98-99)

The minutes of the special meeting held on 16 January 1999 were confirmed.

II. Items for discussion at future meetings
(LC Paper No. CB(2)1693/98-99(01))

Regular meeting in May 1999

2. Members agreed that the regular meeting to be held on 18 May 1999 would discuss the following items -

Operation of the Court of Final Appeal; and
"Leapfrog" appeals to the Court of Final Appeal

Special meeting to discuss "Legal education"

3. Members noted that the Administration, the two legal professional bodies and the two Universities had made submissions on the subject in response to the Panel's request. Members agreed that the item should be discussed at a special meeting to be held on 15 May 1999 at 9:30 am.

(Post-meeting note : The special meeting was subsequently rescheduled to 5 June.)

III. Progress of Year 2000 (Y2K) compliance exercise in Government, Government-funded and Government-regulated organizations
((LC Paper Nos. CB(2)1692/98-99(01) to (04))

4. The Chairman welcomed representatives from the Department of Justice, the Judiciary and the Legal Aid Department and invited them to report on the progress of the Y2K compliance exercise within their respective policy portfolios.

Department of Justice

5. Deputy Director (Administration) and Chief Management Services Officer summarized the Department of Justice's Y2K compliance position as follows -

Administrative Computer Systems
There were six Non-Critical Administrative Computer Systems, three of which (Bilingual Laws Information System, Bilingual Document Management System and Library Management System) were Y2K compliant. The other three (i.e. English Document Management System, Network Installation and Office Automation Project, and Bar-coding File Management System) were not compliant and were in the process of being replaced or upgraded.
End-User Developed Computer System
There were 25 small scale stand-alone systems, of which three were Y2K compliant and five others would be replaced. Of the remaining 17 systems, rectification had been done for eight systems, and the other nine systems would either be upgraded, rewritten or replaced by other systems now being installed under the Department's Information System Strategy Plan.

The Department was currently on schedule to complete all the Y2K rectification projects by the end of June 1999.

6. The Chairman enquired about the potential impacts on the work of the Department of Justice in case of a Y2K failure in its computer systems. Chief Management Services Officer (CMSO) replied that none of the Department's computer systems fell within the category of mission-critical systems. In the event of a system failure, most of the impacts would be felt in terms of disruptions to communications within the Department. The Network Installation and Office Automation Project, for example, was a major area of concern in this regard. To address the problem, the Department was in the process of replacing, in phases, the "cc:Mail" currently in use with a Y2K compliant programme known as "Lotus Note". Where necessary, the Department could fall back on the use of an upgraded version of the existing programme, i.e. cc:Mail 8, to maintain internal communication.

7. In reply to a further question from the Chairman, CMSO said that work relating to law drafting was done through ordinary word processing. The Y2K problem therefore did not affect work in this particular area.

8. Mrs Miriam LAU asked whether services provided to members of the public by the Department would be adversely affected should a system breakdown occur. CMSO replied that this scenario was unlikely to happen. He said that at present, the major source of contact with the public was maintained through the use of the Department's Bilingual Laws Information System, which was free from the Y2K problem.

The Judiciary

9. Acting Deputy Judiciary Administrator (Administration) informed members that the Judiciary had carried out a Y2K compliance study jointly with the Information Technology Services Department in March 1998 to look into the Y2K compliance status of individual systems and determine the strategy for implementing the Y2K rectification project. The progress of the rectification work was satisfactory. The Judiciary had ten main computer systems, all of which were mission-critical. By now, all the 10 main systems had passed the Y2K compliance test. The Judiciary had also checked the Y2K compliance status of 73 mission-critical embedded systems, 69 of them were already Y2K compliant. The rectification of the remaining four non-compliant systems was expected to be completed by June 1999.

10. At the invitation of the Chairman, Project Manager, JISS Project Management Unit (PM/JISS) gave a brief introduction on the functions of the 10 main computer systems of the Judiciary which were mission-critical -

Case and Summons Management System for Magistracies (CASEMAN);
Digital Audio Recording and Transcription Services System;
Probate Registry System;
Small Claims Tribunal System;
District Court System;
Resource and Operations Management Automation System;
Jury Management System;
Legal Reference System;
High Court Case Management System; and
Family Court Case Management System.

11. In response to the enquiry about contingency plans for the major mission-critical systems, PM/JISS advised that in the event of unforeseen breakdown of a particular system, the Judiciary would switch to the manual mode of operation to minimize the effects of disruption. He admitted that systems failure would be a genuine cause for concern because of the heavy reliance on the use of computers for the efficient operation of the Judiciary. To prepare for any unforeseen emergency situations that might arise, a consolidated disaster recovery drill for the major computer systems would be carried out in the second half of 1999. In the meantime, guidelines were being drawn up to set down in clear terms the procedures for invoking the contingency measures in the event of system failures. PM/JISS advised that all the contingency plans should be ready by June 1999. To ensure that there would be sufficient manpower resources to cope with unforeseen emergencies, staff of the Judiciary would be encouraged not to take leave during the high-risk dates, namely, 9 September and 31 December 1999, 1 January, 29 February and 1 March 2000 respectively.

12. Members were concerned that certain essential information contained in the computer systems might be lost as a result of the Y2K problem, such as information required for the listing of cases, service of summonses and appointment of jurors. This might lead to delay in the hearing of cases or result in an application to the Court being turned down. PM/JISS replied in the negative. He said that the Y2K problem was basically date-specific, and the worst scenario in case of a system failure would be that the dates produced by the computers as appearing in the various documents were scrambled. If such a situation should happen, all relevant would be vetted and verified manually.

The Legal Aid Department

13. Policy and Administration Coordinator, Legal Aid Department (PAC) advised that the Y2K compliance activities for the Department had been making good progress. Of the 19 mission critical systems, all except one were Y2K compliant as at 15 April 1999. The outstanding one was the Department's telephone enquiry hotline. It was anticipated that rectification would be completed in June 1999.

14. In reply to the Chairman, PAC said that a computer failure would not lead to loss of information. All the information relating to legal aid applications was placed in the physical files maintained in respect of the applications and such information could be retrieved manually where necessary. Admittedly, some delay might be caused in case an unforeseen system breakdown occurred, such as in the computation of costs in respect of legally aid cases. Such work would then have to be done manually. The Department was working out contingency plans to minimize possible disruptions to its services in the event of a failure of its mission critical systems.

IV. Proposal to create one permanent post of Assistant Principal Legal Aid Counsel and to regularize the directorate structure of the Application and Processing Division of the Legal Aid Department
(LC Paper No. CB(2)1692/98-99(05))

Discussion

15. At the invitation of the Chairman, Director of Legal Aid (DLA) took members through the Administration's paper (LC Paper No. CB(2)1692/98-99(05)) on the proposal to create one permanent post of Assistant Principal Legal Aid Counsel (APLAC) at DL1 on the legal directorate scale and to regularize the existing directorate structure of the Application and Processing Division (A&PD) of the Legal Aid Department (LAD). He advised that the heavy demands for legal aid services had resulted in increases in workload of the Headquarters Office and the Kowloon Branch Office (KBO) of the LAD, putting a heavy strain on the directorate staff of A&PD who not only were responsible for the operation of the Division but also were involved in the overall management of the Department. The proposals for which the Administration sought the Panel's support aimed at improving the span of directorate supervision and ensuring the efficient operation of A&PD.

16. Mr TSANG Yok-sing referred to Enclosure 1 of the paper and pointed out that there had not been a linear increase in the number of civil cases in A&PD from 1991 to 1998. For KBO, for example, the number of applications received in 1997 was greater than that in 1998. According to the statistics, the number of cases handled in recent years in fact appeared to be steady.

17. In response, DLA said that the number of applications made to A&PD in 1997 was extraordinarily high in that the number included several thousands of cases relating to the right of abode in Hong Kong of Mainland children as well as those concerning Vietnamese people. Putting the sudden increases in these cases aside, the number of applications in 1998 still represented an increase over that in 1997. He further advised that for the period over the past 10 years, the average annual increase was about 10%.

18. Mr Albert HO said that under the existing system, about one-third of the LAD's cases were handled by in-house counsel and the rest were taken up by counsel on fiat. He asked whether or not LAD could assign out more litigation cases to private practitioners, thus allowing counsel in LAD to devote more time to processing legal aid applications and monitoring the assigned-out cases. Echoing Mr HO's views, the Chairman said that by adopting a more flexible approach of internal deployment, the Department might be able to cope with short-term fluctuations in workload without having to create additional permanent staff. She pointed out that, as indicated in Enclosure 2 of the Administration's paper, the establishment of A&PD in the Headquarters Office and KBO had expanded by 193% and 101% respectively since 1991.

19. In reply to the above queries, DLA explained that deployment to strengthen the structure of A&PD had taken place. As a result of a re-engineering exercise in 1997, one APLAC from the Litigation Division(LD) had been transferred to A&PD to lead a dedicated section to improve the processing and monitoring of personal injury cases. After the transfer, the number of sections in LD had been reduced from five to four. In addition, the APLAC in the Official Solicitor's Office had been temporarily transferred to assist the Assistant Director of Legal Aid (ADLA) in KBO . He said that the present proposals merely sought to turn the existing directorate structure of A&PD into a permanent one. He added that so far as the establishment of the directorate levels in A&PD was concerned, there had been no increase in strength since 1989. As for LD, a post of ADLA at DL2 to take charge of civil litigation cases was created in 1998.

20. DLA further advised that the policy was that LAD should assign about 70 to 80% of its civil cases to counsel on fiat. It was considered essential to maintain a stable proportion of cases to be handled by counsel in the Department so that they could improve their professional experience and expertise for the satisfactory performance of their duties both in LD and A&PD. In 1998, a Working Party had been established within the Department to review the mechanism for assigning out cases and the Working Party recommended that monitoring of such cases by A&PD should be strengthened.

21. Mrs Miriam LAU said that according to paragraph 7 of the paper, in the 12 months from December 1997 to November 1998, 89% of the applications in civil cases were processed within the standard processing time, i.e. within three months from the date of application. Mrs LAU opined that as this achievement was above LAD's performance target of 80% and therefore was indicative that the Department had been coping well with its workload, the Administration would need to give more justifications for the proposed creation of an APLAC post. She also queried the need, as mentioned in paragraph 8 of the paper, to transfer the APLAC on loan to KBO back to the Official Solicitor's Office to "underpin the Director of Legal Aid in the conduct of the Official Solicitor's cases", following the creation of the proposed APLAC post.

22. The Administration responded that with public aspiration calling for a more efficient service, there had been renewed demand that the standard processing time for legal aid applications be further shortened. This together with the increase in the number of applications and assigned-out cases had put a strain on A&PD. With regard to KBO, before 1997, there had been only one ADLA to supervise the whole office, which comprised over 100 supporting staff members and was responsible for handling more than 10 000 applications per year and monitoring over 10 000 assigned-out cases. The directorate structure was grossly inadequate to provide satisfactory services to the public. Since the staff deployment in 1997 to improve the directorate structure in KBO, supervision and operational efficiency had been greatly enhanced.

23. Mrs Miriam LAU considered that the Administration should substantiate the proposal with more supporting information such as the demand of the public to further shorten the processing time for legal aid applications and the ultimate performance target intended to be achieved by the Administration.

24. In response to the Chairman, DLA said that the Administration was still examining the pros and cons of making the Official Solicitor's Office independent from LAD.

Conclusion

25. Members concluded that whilst they were in support of improving legal aid services provided to the public, they had yet to be fully convinced of the need for the creation of the proposed post of APLAC. The Chairman said that in these days when organizations alike were focusing their minds on productivity enhancement and structural streamlining, the Administration had to further justify its proposals when such proposals were put forward for the consideration of the LegCo Establishment Subcommittee.

V. Public interest defence in criminal law
(LC Paper Nos. CB(2)1506/98-99(05) & (06); and 1556/98-99(01))

Discussion

26. In response to the Chairman, Legal Adviser (LA) briefly took members through his information paper (LC Paper No. CB(2)1506/98-99(05)) on a preliminary study to identify whether or not public interest defence was available in relation to certain offences created by statute. He said that whilst existing statutes provided no definition of "public interest defence", nor a general defence to conduct penalized under the criminal law that the accused did the act in the public interest, some existing legislation was found to have provided a defence which, in broad terms, could be categorized as akin to a public interest defence. These provisions were, namely, section 30 of the Prevention of Bribery Ordinance (Cap. 201); section 28 of the Control of Obscene and Indecent Articles Ordinance (Cap. 390); and section 180 of the UK Financial Services Act 1986. LA further advised that there was no case law which was relevant to the issue of public interest defence for criminal provisions in statutes.

27. At the invitation of the Chairman, Senior Assistant Director of Public Prosecutions (SADPP), elaborated on the Administration's paper (LC Paper No. CB(2)1506/98-99(06)), which set out the Administration's views on whether a defence of public interest should be introduced in respect of criminal offences, particularly offences relating to unlawful disclosure of information. He advised that there were areas in law where an approach similar to a defence of greater good existed. In addition to the statutory provisions referred to by LA, there was in a broader sense the general defence at common law of necessity and duress as well as the defence to many offences in the nature of assault of self defence etc. Yet, the law had in very limited circumstances and in a very circumscribed way recognized something approximate to a public interest defence in the nature of that contemplated by the present discussion. He said that one of the fundamental features of the system of criminal law was the relative certainty of the law, i.e. it was relatively clear what conduct was criminal and what was not. However, because of the difficulty of defining the public interest and determining who was to decide what was in the public interest, the provision of a general defence to criminal conduct on the basis of "acting for a greater public good" would inject into the system of criminal law a wide element of uncertainty in the prevention of crimes, in the sense that people would not be able to know whether a certain conduct would be subject to criminal sanctions. He added that even in the context of section 30 of the Prevention of Bribery Ordinance, the scope of the "public good" defence in the disclosure of information was very limited, and the conduct described in section 30(3) of the Ordinance (i.e. unlawful activities by the Commissioner of the Independent Commission Against Corruption) which could conceivably give rise to the defence could only occur in very narrow circumstances.

28. SADPP further referred to the recent case concerning the illegal access to the medical records of the Secretary for Justice by the accused person, who had been convicted for the offence under section 161(1) of the Crimes Ordinance (Cap. 200). That section stipulated that -

with intent to commit an offence;
with a dishonest intent to deceive;
with a view to dishonest gain for himself or another; or
with a dishonest intent to cause loss to another, whether on the same occasion as he obtains such access or on any future occasion, commits an offence and is liable on conviction upon indictment to imprisonment for 5 years."

SADPP said that a defence similar to that in section 30(3) of the Prevention of Bribery Ordinance could not apply in this particular case. It was because, unlike the former provisions which related directly to disclosure of information, section 161(1) of the Crimes Ordinance dealt with the crime of obtaining illegal access to a computer. As far as the case in question was concerned, the offence of gaining access to the hospital computer, which contained those specific information, had been committed before the public interest issue of exposing the accessed information actually arose. Furthermore, the conduct under section 161 was essentially a form of electronic burglary, and it would be difficult to argue for a defence of public good in respect of an offence involving the infringement of privacy right.

29. Mr Martin LEE said that whilst he was aware of the undesirability of introducing a general public interest defence in criminal law, he considered that there could be valid arguments for providing for a similar defence on an offence-specific basis. He said that, for example, if the Government released false information to mislead the public, a person who "blew the whistle" by revealing the facts in the public interest might claim defence on such grounds, despite the obtaining of the information in itself was unlawful. For the defence to succeed, the accused person had to prove the existence of a misrepresentation of facts as well as a genuine belief on his part that he acted in the interests of the public in obtaining and disclosing the facts. In the end, it would be a matter for the court to decide on the validity of the defence on the basis of available evidence and on a balance of probability. He considered that section 161 of the Crimes Ordinance could be amended to give effect to this.

30. Echoing Mr Martin LEE's views, Mr Albert HO opined that it might be in the interests of the public to divulge certain confidential information in situations involving matters of tremendous public concern, say in the case of a leakage of nuclear radiation. He added that freedom of expression and to impart information had been provided under the International Covenant on Civil and Political Rights (ICCPR).

31. Mr TSANG Yok-sing was concerned that the creation of a public interest defence in section 161 of the Crimes Ordinance could give rise to undesirable and far-reaching consequences because the provisions in the section went well beyond Government information. He considered that the noble intention of a person to expose untruths for the purpose of benefiting the public should not by itself constitute a defence of illegal access to information.

32. In response to the Chairman, SADPP advised that the right to receive and impart information under ICCPR was qualified in that such right should not intrude into the rights of others. A major concern about the provision of a public interest defence in the context of section 161 of the Crimes Ordinance was that it would result in the intrusion of privacy right, as nowadays a lot of confidential and sensitive information maintained within both the public and the commercial sectors was kept in computers. Furthermore, even normal people did not have the same perception of what public interest was. A person who sincerely believed that there was public good in "exposing lies" and set out to reveal certain important and restricted information which he genuinely believed was in the public interest might in fact be doing great damages to the public interest. He said that the Administration was concerned about the undesirable consequences which the introduction of a public interest defence would cause, even if the defence was to apply only in the context of disclosure of public or Government information.

Conclusion

33. The Chairman said that the discussion of the Panel was not meant to be a conclusive one but it had served its intended purpose of stimulating insights into the subject. She thanked LA and the Administration for their views.

34. Mr Martin LEE said that he welcomed any suggestion on how section 161 of the Crimes Ordinance might be suitably amended in the light of the views expressed.

35. The meeting ended at 6:35 pm.

Legislative Council Secretariat
24 August 1999