Panel on Administration of Justice and Legal Services ( Minutes ) 22 Jan 99

Legislative Council

LC Paper No. CB(2)1966/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/PL/AJLS

Legislative Council
Panel on Administration of Justice and Legal Services

Minutes of special meeting
held on Friday, 22 January 1999 at 8:30 am
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 James TO Kun-sun
Hon Mrs Miriam LAU Kin-yee, JP

Members Absent:

Hon Ambrose LAU Hon-chuen, JP
Hon Emily LAU Wai-hing, JP

Public Officers Attending :

Item II
Mr Michael SCOTT: Senior Assistant Solicitor General
Department of Justice
Mr Geoffrey FOX: Senior Assistant Law Draftsman
Department of Justice
Mrs Spring FUNG: Deputy Principal Government Counsel
Law Reform Commission
Ms Paula Scully: Senior Government Counsel
Law Reform Commission
Item III
Ms Alice TAI, JP: Judiciary Administrator
Mrs Betty CHU: Judiciary Secretary
Mr Roger LAW: Chief Judicial Clerk (High Court Registry)
Item IV
Ms Alice TAI, JP: Judiciary Administrator
Mrs Betty CHU: Judiciary Secretary

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. Invitation for the Secretary for Justice to make a public statement about her earlier decision not to prosecute Madam AW Sian in the Hong Kong Standard case

The Chairman informed the meeting that at a special meeting of the Panel on Administration of Justice and Legal Services of the Provisional Legislative Council held on 23 March 1998 to discuss the Hong Kong Standard circulation fraud case, the Secretary for Justice (SJ) had then indicated that she hoped that she would be in a position to made a public statement on the case after the conclusion of the trial. Following the delivery of the Court's judgment on 20 January 1999 on the conviction of the three accused persons, and upon her instruction, the Clerk had written to SJ on 21 January 1999 to invite her to attend this meeting and to address the Panel on her decision not to prosecute Madam AW Sian, the named co-conspirator in the case. SJ subsequently replied that she would not be able to do so on this occasion. The reason, as given in a press statement issued by the Department of Justice, was that "the Department of Justice will study the Reasons for Verdict carefully, and will also consider the report of the case being prepared by counsel who conducted the prosecution. ......The timing of any such statement (about its earlier decsion not to prosecute Madam AW) will need to take into account any matter which may be raised if there is any appeal against conviction." The Chairman sought members' views as to how the matter should be taken forward.

2. Mr Martin LEE said that he did not agree that the timing for an explanation by the SJ would need to take into account the possibility of an appeal by the three convicted persons, because a statement made by the SJ, which involved a decision to prosecute a fourth person, would in no way affect the interests of the three persons even in the event of an appeal. He further pointed out that a recent press report regarding a statement which was said to have been made by Madam AW Sian to the Independent Commission Against Corruption had raised serious doubts about the appropriateness of SJ's decision not to prosecute Madam AW. He opined that to allay public concern that the SJ's decision had shaken people's confidence in the rule of law in Hong Kong, SJ should be invited to give an account on the case without further delay.

3. Members generally agreed that in view of the substantial public interest involved in this case, SJ should be urged to give an explanation to the Panel at the earliest opportune time. In response to members, Legal Adviser briefly explained on the procedures involved in invoking the powers under the Legislative Council (Powers and Privileges) Ordinance to summonse Government officials to give evidence before a committee of the LegCo.

4. After some further discussion, The Chairman concluded that the Clerk should write to SJ again on the Panel's behalf to express members' concern about the matter and to ask SJ to reconsider the timing for giving a prompt explanation at the Panel. Members agreed that, pending a reply from SJ, the Chairman should report to the House Committee in the same afternoon about the developments of the case.

Clerk

II. Interpretation and General Clauses (Amendment) Bill 1999
(LC Paper No. CB(2)1127/98-99(01))

5. At the invitation of the Chairman, the Administration elucidated on the Interpretation and General Clauses (Amendment) Bill 1999, which sought to implement the recommendations of the Law Reform Commission (LRC) on the use of extrinsic materials in statutory interpretation. The main recommendation of the LRC was that legislative criteria for the use of extrinsic materials in statutory interpretation should be provided in a new section 19A of the Interpretation and General Clauses Ordinance (Cap. 1), based on a new section added to the Australian Interpretation Act 1901 in 1984. The proposed new section 19A would provide that, where a provision of an Ordinance was ambiguous or obscure, or its ordinary meaning in the context in which it was used led to a result that was absurd or unreasonable, then material not forming part of the Ordinance but which was capable of assisting in ascertaining the meaning of the provision ("extrinsic material"), might be considered for the purpose of ascertaining the meaning of the provision.

6. The Chairman asked whether the proposed legislative amendments were for the purpose of codifying the principle and criteria in Pepper v Hart (1992) for the admissibility of extrinsic materials in statutory interpretation. The criteria were summarized as -

7. The Administration replied that while the amendments proposed to be introduced in the Bill were built upon the criteria in Pepper v Hart, they aimed to go beyond Pepper v Hart to better clarify the types of extrinsic aids and the circumstances in which they could be used. The Administration drew members' attention to paragraph 16 of its paper (LC Paper No. CB(2)1127/98-99(01)) which set out a list of items of extrinsic materials to be included in the proposed section 19A of Cap. 1, which purported to provide a useful reference to legislators, judges and practitioners as to what materials were relevant and reliable to assist them in interpreting an ambiguous or obscure provision. The Administration added that the listed items were by no means exhaustive.

8. Mr Martin LEE enquired about the rationale for extending the principle in Pepper v Hart, which thus placed Hong Kong in the position of a fore-runner in the area of statutory interpretation. Senior Assistant Solicitor General (SASG) replied that at present, the use that had been made in Hong Kong of Pepper v Hart was not particularly clear. Although Pepper v Hart had broadened the range of admissible extrinsic aids, it did not clarify the circumstances in which they might be used. In addition, Pepper v Hart tended to place emphasis on the second reading speech made by the presenter of the Bill and attach less weight to other materials which might also be very useful, such as relevant reports of committees similar in nature to the LegCo Bills Committees' reports or the LRC reports. To that extent, it could be said that Pepper v Hart did not provide sufficient guidelines to the courts in interpreting legislation. Furthermore, it would probably take a very long time before developments in the courts resulted in a comprehensive judicial code on the admissiblilty and weight of extrinsic aids for the purpose of statutory interpretation. Therefore, it would be a better approach to have a statutory code in place which would save the expenditure of more time and legal costs. The Administration added that the proposed amendment Bill more or less followed the Australian model, except that the scope of the latter was even wider. In the local context, the use of extrinsic materials by the court was not mandatory, and the threshold tests for the use of such material would be specified in the proposed new section 19A of Cap. 1.

9. Senior Government Counsel (LRC) said that the Australian model also included using extrinsic materials to confirm, rather than to assist in interpreting, a meaning, and this had generated a lot of concern during the consultation stage that it would lead to abuse of the rules and too much useless materials being brought before the court. The LRC had therefore excluded this aspect from its recommendations.

10. Mr Martin LEE cautioned that a decision to follow the Australian precedent to extend beyond the criteria in Pepper v Hart must be taken with care. He said that under common law, the principle had been established that the intention of, for example, the makers of a contract had to be ascertained from within the "four corners" of the document. By the same token, when it came to statutory interpretation, the overall purpose was for the court to interpret the intention of the law by looking exclusively at the Ordinance itself, and not by referring to extrinsic materials which might be unreliable and irrelevant. He pointed out that Hong Kong differed from Australia in that the local Administration did not have a majority in the legislature. This meant that the intention of the Administration, as the promoter of a Bill in most cases, might not be the same as the intention of the LegCo that passed it. However, the proposed new section 19A of Cap. 1, which attached great importance to extrinsic materials many of which were within the control of the Administration, had the effect of obliging the court to interpret the law as the Administration would wish it to interpret. Mr LEE considered that the use of extrinsic materials should be restricted, rather than extended.

11. SASG said that the scope of extrinsic materials set out in proposed section 19A of Cap. 1 was much wider than that of Pepper v Hart, the latter focusing primarily on the second reading speech by the promoter of the Bill. Therefore, the present proposals would be a safer approach as they allowed the court a wider purview of what should be looked at in the objective sense to assess the real intention of an ambiguous or obscure legislative provision. He added that the fact that the Administration did not have a majority in the LegCo meant that greater justifications in terms of legal policy had to be put forward in order that a majority vote in the legislature could be obtained in respect of a particular legislative proposal.

12. The Chairman and Mr Martin LEE considered that the specification of a long and non-exhaustive list of extrinsic materials would in effect create more uncertainty than clarity in the interpretation of the law. Echoing this view, Mr Albert HO said that there were well-established principles providing guidelines to the court to resolve ambiguities in statutes, of which Pepper v Hart was but one example. He queried the need to extend the scope further. He added that the need to refer to a wide spectrum of extrinsic materials would make it more difficult for an ordinary layman to understand the law without the benefit of legal advice.

13. In response, the Administration said that the purpose of the proposed amendments was to enhance certainty in the understanding of the law, when certain statutory provisions were not worded in plain language and the true intention of the law was not clearly reflected. The experience in Australia and the U.K. was that judges were very careful in using extrinsic aids, and the courts had struck out extempore remarks made in committees of Parliament on the basis that they were not fair and therefore should carry no weight.

14. Mr Martin LEE noted that although the Australian model prescribed a variety of extrinsic aids for the purpose of statutory interpretation, the judges somehow still effectively followed the basic rule of Pepper v Hart and limited themselves to the second reading speech. He said that the principle in Pepper v Hart had already been adopted in Hong Kong and it seemed that there was no sufficient justification to extend the scope further. The Chairman said that the present proposals for change fell within a developing area of law where there had yet to be a firm decision as to the appropriateness of having a list of extrinsic materials codified by statute. The Chairman anticipated that the subject would need to be studied in great detail in a Bills Committee to be formed to scrutinise the Bill after its introduction. She invited the Administration to take into consideration the concerns raised by members at this meeting.

15. In response to the Chairman, SASG advised that the Administration intended to to introduce the Bill into the LegCo in March 1999.

III. Proposed restructuring and creation of additional posts of Deputy Registrars
(LC Paper No. CB(2)1127/98-99(02))

16. The Chairman invited the Judiciary Administrator (JA) to explain the staff proposal as set out in LC Paper No. CB(2)1127/98-99(02).

17. In introducing the proposal, JA advised that there were five Deputy Registrars (DR), High Court on the existing establishment of the Master's Office, High Court of the Judiciary. Designated as Masters, DRs heard interlocutory and summary applications in chambers and conducted various types of proceedings in court. They also assisted the Registrar, High Court in the discharge of statutory, legal and quasi-judicial functions. The establishment of DRs was last reviewed in 1995. Since then, the number of High Court civil cases had been on the increase. The situation had been aggravated by the recent economic downturn. It was felt that the existing establishment of DRs in the Masters Office of the High Court was inadequate to cope with the increasing workload. In addition, the present division of responsibilities among Masters was out of step with the modern trend of case management being followed by overseas jurisdictions. After a review conducted by the Judiciary, it was proposed to -

create a new rank of DR, High Court carrying a monthly salary of $127,900 - $135,550;
retitle the existing rank of DR, High Court carrying a monthly salary of $136,400 - $144,750 to Senior Deputy Registrar, High Court; and
create five permanent posts of DR, High Court carrying a monthly salary of $127,900 - $135,550, to be offset by the deletion of two permanent posts of Senior Deputy Registrar, High Court ($136,400 - $144,750).

JA said that the above establishment proposals involving a restructuring of the rank of DRs were necessary in order to better reflect the levels of responsibilities required to be undertaken by the Masters. To enable the development of effective case management into other areas of civil litigation along the line of the Personal Injuries List and to handle such other important areas of work including civil and criminal appeals, 3 of the 8 DRs would be appointed as Senior Deputy Registrars. With the new rank of DR pitched at the same level as Judges of the District Court, it would permit a flexible and effective deployment of judicial personnel between the High Court Registry and the District Court. Cross postings of judges between the High Court Registry and the District Court were considered to be beneficial to the training and development of judges. In addition, the creation of five posts of DR at the same level as District Court Judges would enable Magistrates and legal practitioners from the private sector with aptitude or preference for civil work to be appointed as Masters without necessarily going through the District Court bench first.

18. Mr Martin LEE said that the proposed amendment to the District Court Ordinance to increase the financial jurisdictional limits of the District Court would result in the diversion of a certain number of civil cases, such as personal injuries cases, from the Court of First Instance of the High Court to the District Court. He enquired if this would affect the justification for the proposed number of DR posts in the High Court to be created.

19. JA replied that the establishment proposals under consideration had already taken into account the effects of possible changes to the jurisdictional limits of the District Court on the workload of the High Court. The existing and anticipated civil caseload to be handled in the High Court justified the net addition of three DR posts. Referring to paragraph 4 of the Administration's paper on increase in workload, JA advised that the updated number of actions commenced in the High Court Registry stood at 34,000 for the whole year of 1998, representing an increase of about 50% when compared with 1997.

20. Mr James TO opined that the increase in the number of General Chambers hearings before the Masters might be due partly to increasing use of Chinese in courts and the growing number of cases conducted by the parties without legal representation. He added that for cases like legal aid appeals on merits, the time allowed for a case to be disposed of under the present General Chambers listing, which lasted generally not more than ten minutes, appeared to be inadequate for the case to be fully heard. This had occasionally generated complaints from the applicants. He hoped that cases could be dealt with more satisfactorily with the creation of the additional posts.

21. JA assured that members of the Judiciary, both judicial and non-judicial, were mindful of the interests of the public and would render every assistance wherever possible. However, under the present listing schedule of General Chambers hearings and given the substantial increase in the amount of cases involving litigants in person, it was unlikely that the duration of the time for each Master hearing could be extended, otherwise it would be impossible to achieve the target of gradually improving the waiting time. The present restructure and staff proposals should not be seen as a drastic reform of the existing listing system and its mode of operation, apart from the objectives mentioned earlier. JA added that the increase in the number of hearings before Masters had no direct connection with the increased use of Chinese in courts.

22. Mr Albert HO noted that the situation of workload increase relating to High Court civil cases had been aggravated by the recent economic downturn. He asked if the demand for additional manpower in the High Court would ease when the economy eventually picked up. In response, JA said that that it was anticipated that for certain types of cases, such as claims arising from labour disputes, the number might level off as the economic situation improved. However, the overall number of civil actions commenced in the High Court as well as the complexity of the cases were expected to be continuously on the rise. She said that the Judiciary had considered the matter carefully over a period of time but eventually came up with the present proposals having taken all factors into consideration. She advised that in the event of temporary fluctuations in workload in different areas, the situation could be dealt with effectively by internal redeployment of resources within the Judiciary.

IV. Review of pay scale of Special Magistrates grade and Judicial pay scale
(LC Paper No. CB(2)1127/98-99(03))

23. At the invitation of the Chairman, JA briefed members on the proposals to -

revise the pay scale of the Special Magistrate (SM) grade from $56,540 - $59,325 to $56,540 - $66,800 as a result of a review of the SM grade conducted by the Judiciary; and
designate specific pay points for the Judicial Service Pay Scale incorporating the revision proposed in paragraph (a) above.

24. Justifications for the above proposals were detailed in LC Paper No. CB(2)1127/98-99(03). In particular, JA drew members' attention to the following major recommendations for change regarding the SM grade -

Legally qualified persons should in future be appointed as SMs.
The SM would cease to be a career grade. New SMs would be appointed on three-year renewable contracts only for up to three to four contracts and they were expected to compete for appointment as Magistrate. The Judiciary envisaged that the majority of SMs would have gained advancement to Magistrate before the completion of the second contract.
The pay scale of the SM grade should recognize the legal qualification required of new entrants and reflect the career reality of the grade and the responsibilities of the job. Accordingly, the existing pay scale of SM should be extended by three salary points. A legally qualified person should enter at the second point of the pay scale.
Serving non-legally qualified SMs would continue to serve under the existing framework. However, they would not be allowed to benefit automatically from the revision in pay scale. They would be encouraged to enhance their professionalism by pursuing academic legal qualifications on a part-time basis and they would progress along the new pay scale only upon obtaining legal qualifications. In applying for appointment as Magistrate, the requirement of obtaining professional qualifications would be waived in respect of serving non-legally qualified SMs, after they had obtained academic legal qualification and the necessary five years' experience on the magisterial bench.

25. The Chairman said that the responsibilities of SMs in recent years had become more onerous because of the increased complexities of the cases handled. It was increasingly common for defendants, even in what appeared to be minor and straight-forward cases, to contest on points of law. It became therefore more difficult for non-legally qualified SMs to handle the cases involving arguments over points of law satisfactorily. JA concurred and said that this partly accounted for the view that SMs should have a better knowledge of law and that new appointees should be legally-qualified. Nonetheless, she added that the retention of the flexibility of being able to appoint non-legally qualified SMs would contribute to maintaining a stable force in the SM grade, particularly in the situation when future recruitment of legally-qualified SMs might become more difficult when the economy picked up. She said that most of the serving serving SMs were appointed on permanent and pensionable terms, a large proportion of whom were recruited from officers previously serving as Judicial Clerks or Court Interpreters.

26. In reply to a question from the Chairman, JA advised that one of the serving SMs had obtained legal qualifications.

27. The Chairman pointed out that with expansion of legal education locally, Hong Kong had more lawyers than 17 years ago when the grade of SM was first created. She supported that as far as practicable, new recruits to the SM grade should be legally qualified persons. She considered that the recommendations made by the Judiciary were a reasonable move to achieve a balance between enhancing professionalism in the SM grade and preserving the interests and career development of incumbents.

28. Referring to the Judicial Service Pay Scale, the Chairman opined that it should be delinked from the Master Pay Scale (MPS)/Directorate Pay Scale(DPS), the latter being applicable to the executive arm of the Administration, to reflect judicial independence. JA clarified that the inclusion of the MPS/DPS in Enclosure 4 of the paper was only to serve as reference. She explained that the existing pay scale for the judicial service was only expressed in absolute money terms. It had no designated pay points. A Judicial Service pay scale with specific pay points designated would make it more convenient, for administrative purposes, to make reference to the pay of Judges and Judicial Officers at different ranks and at different levels of courts.

29. There being no other business, the meeting ended at 10:30 am.

Legislative Council Secretariat
13 May 1999

Legislative Council

Legislative Council Panel on Administration of Justice and Legal Services Minutes of special meeting held on Friday, 22 January 1999 at 8:30 am in Conference Room A of the Legislative Council Building

Legislative Council
Panel on Administration of Justice and Legal Services

Minutes of special meeting
held on Friday, 22 January 1999 at 8:30 am
in Conference Room A of the Legislative Council Building