Panel on Administration of Justice and Legal Services ( Minutes ) 25 Feb 99

Legislative Council

LC Paper No. CB(2)2556/98-99
(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 Thursday, 25 February 1999 at 4:00 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 James TO Kun-sun
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Hon Emily LAU Wai-hing, JP

Member Attending:

Hon LEE Cheuk-yan

Public Officers Attending :

Item II
Mr Clement MAK: Acting Secretary for Constitutional Affairs
Ms Carol YIP: Principal Assistant Secretary for Constitutionl Affairs
Mr Robert ALLCOCK: Acting Solicitor General
Mr Benedict LAI: Deputy Law Officer (Civil Law) (Advisory)
Ms Miranda CHIU: Deputy Director of Administration
Ms Rosanna LAW: Assistant Director of Administration
Item III
Ms Miranda CHIU: Deputy Director of Administration
Ms Rosanna LAW: Assistant Director of Administration
Mr S Y CHAN, JP: Director of Legal Aid
Ms Lolly CHIU, JP: Policy and Administration Coordinator, Legal Aid Department
Item IV
Ms Miranda CHIU: Deputy Director of Administration
Mr David LEUNG: Assistant Judiciary Administrator
Ms Rosanna LAW: Assistant Director of Administration
Ms Amy WONG: Assistant Secretary (Administration)

Attending By Invitation:

Hong Kong Bar Association
Item II: Mr Johannes CHAN
Item III
Mr Johannes CHAN: Law Society of Hong Kong
Item III: Mr Raymond C K HO　
Mr Patrick MOSS

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. Items for discussion at next and subsequent meetings
(LC Paper No. CB(2)1324/98-99(01))

Members agreed that the following items would be discussed at the next regular meeting scheduled for 23 March 1999 -

Role and conduct of Hong Kong solicitors and China-appointed attesting officers in China properties transactions; and
Public interest defence in criminal law.

With regard to item (b) above, the Legal Adviser (LA) said that a preliminary research into the subject had been conducted in response to members' request made at the last meeting on 19 January 1999. The study found that there was neither a general definition of "public interest defence" in existing legislation, nor a category of public interest defence as a general defence in criminal law. He said that for the purpose of the present discussion, the expression of "public interest defence" was taken to refer to a defence which would relieve an accused of criminal liability if the proscribed act was done in the public interest. On this basis, he had identified a few examples in legislation which might be considered as providing for public interest defence to offences created by statute, 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.

2. Members agreed that an appropriate starting point would be to examine the subject in the context of offences relating to illegal disclosure of information to see if there were justifiable grounds for the introduction of a public interest defence in respect of such offences.

3. Mrs Miriam LAU noted that under section 161 of the Crimes Ordinance (Cap. 200), which dealt with the offence of illegal access to computer, it was necessary for the conviction of the crime to prove the criminal or dishonest intent of the offender, in committing the act, to obtain gain for himself or cause loss to another. She cautioned that in defining the proper scope of discussion of the subject, the necessity to balance the overall interests of the community must not be overlooked.

Prosecution on grounds of public interest

4. Ms Emily LAU suggested and the meeting agreed that as a separate issue, the matter of criminal prosecution on grounds of public interest should be discussed at a future meeting of the Panel.

II. Review of Ordinances binding on the Government but not on PRC organs
(LC Paper Nos. CB(2)1324/98-99(02) - (04))

Report by the Administration

5. At the invitation of the Chairman, Acting Secretary for Constitutional Affairs (S for CA (Ag)) took members through the Administration's paper on the review (LC Paper No. CB(2)1324/98-99(02)), which outlined the policy considerations for extending the applicability of Ordinances to the "State" organs in Hong Kong. He informed members that the relevant policy Bureaux had decided that 15 of the 17 Ordinances under review (as listed in the paper) should be amended so that they would be applicable to the "State" organs in Hong Kong and their personnel. The Social Workers Registration Ordinance (Cap. 505) applied to individuals and not their employers and therefore it had no relevance to either "the Government" or the "State" organs in Hong Kong. The remaining Personal Data (Privacy) Ordinance (Cap. 486) was more complicated and it would take a relatively longer time for a review to be completed. He said that the Administration had started discussion with the Central People's Government (CPG) a few weeks ago as to whether the Personal Data (Privacy) Ordinance should be extended to apply to the "State" organs in Hong Kong. He undertook to report back to the Panel on further developments.

6. Regarding the 15 Ordinances in question, S for CA (Ag) advised that the Bureaux were preparing the necessary legislative amendments in order to give effect to the extension of their applicability to the "State" organs in the SAR. The Bureaux would follow up with the relevant LegCo Panels when the drafting of the amendment Bills was completed.

7. Members considered that discussion with the CPG on the applicability of the Personal Data (Privacy) Ordinance should have proceeded earlier, since the issue of the applicability of Ordinances to the "State" organs had been raised and discussed by the Panel as early as in September 1998. Members requested the Administration to provide an urgent reply in relation to the following -

the reasons for the lateness in commencing discussion with the CPG on the Personal Data (Privacy) Ordinance;
an explanation of the complexity involved in reviewing that Ordinance; and
the expected timing for completing the review.

(Post meeting note : An interim reply from the Administration has been circulated to members vide LC Paper No. CB(2)1458/98-99(02) dated 10 March 1999.)

The Hong Kong Bar Association's views

8. In response to the Chairman, Mr Johannes CHAN said that the Bar Association welcomed the Administration's decision to amend the 15 Ordinances so that they would apply to the "State" organs in Hong Kong. The Bar Association would submit its views regarding the Administration's recommendations in respect of the Personal Date (Privacy) Ordinance in due course.

9. Mr Johannes CHAN said that the Bar Association was of the opinion that all the "State" organs in Hong Kong should be bound by the laws of the HKSAR save for exceptional circumstances, in which case the matter would have to be dealt with in the context of the particular Ordinances concerned. The starting point for a constitutional analysis of the issue was Article 2 of the Basic Law, which conferred the HKSAR with executive, judicial and legislative power in matters within the confines of the SAR. Under Article 22 of the Basic Law, Mainland bodies (i.e. departments of the Central Government, or provinces, autonomous regions, or municipalities directly under the Central Government) must obtain the consent of the SAR Government for setting up offices in the HKSAR. All these offices and their personnel should abide by the laws of the HKSAR.

Discussion

10. Ms Emily LAU enquired about the circumstances under which the HKSAR Government or the "State" organs in Hong Kong might be exempted from the applicability of the laws. In response to the Chairman, Mr Johannes CHAN said that the basic principle should be that all statutes applied to the citizens and the Government alike. A presumption of immunity in favour of the Government was contrary to the modern notion of equality before the law. However, there were situations where the Government was not bound in view of the particular nature of an Ordinance, such as, for example, the Social Workers Registration Ordinance as mentioned earlier. In addition, some Ordinances had express provisions which exempted the Government from certain statutory requirements, such as the Buildings Ordinance, the Road Traffic Ordinance and the Gas Safety Ordinance etc. Mr Johannes CHAN said that in the event of challenges before the Court, the burden would be on the Government to prove the validity of the exemption in the particular circumstances of the case.

Offices of "State" organs established in the HKSAR

11. Mr James TO sought the Administration's response to the comments made in the Bar Association's submission that a "list based" approach should be adopted to specify the bodies under Article 22 of the Basic Law and that there should be a proper and transparent mechanism for the processing of applications of such bodies to set up offices in Hong Kong. S for CA (Ag) responded that, as reported to the Panel at the meeting on 2 November 1998, there were at present three "State" organs in Hong Kong, namely, The Office of the Commissioner of the Ministry of Foreign Affairs of the People's Republic of China in the HKSAR; the Hong Kong Garrison of the Chinese People's Liberation Army (the Hong Kong Garrison); and Xinhua News Agency (Hong Kong Branch). The setting up of the first two "State" organs in Hong Kong was prescribed under Articles 13 and 14 of the Basic Law respectively, whilst the Xinhua News Agency (Hong Kong Branch) had been in existence in Hong Kong long before the reunification. S for CA (Ag) further advised that offices set up by the bodies referred to in Article 22 of the Basic Law in Hong Kong would be outside the terms of the definition of "the State" for the purposes of section 66 of the Interpretation and General Clauses Ordinance (Cap. 1), if such bodies did not carry out executive functions for which the CPG had responsibility under the Basic Law or if they were engaged in commercial activities.

12. In response to the Chairman, LA said that the establishment of The Office of the Commissioner of the Ministry of Foreign Affairs of the People's Republic of China and the Hong Kong Garrison was consistent with the implementation of Articles 13 and 14 of the Basic Law.

13. Members requested the Administration to -

advise on the mechanism and procedures for the HKSAR Government to give consent or otherwise for offices referred to in Article 22 of the Basic Law to be set up in the SAR, and to publicize the establishment of such offices; and
regarding the three "State" organs already stationed in Hong Kong, explain the procedures adopted for giving consent for their establishment in the SAR.

(Post meeting note : The Administration's response has been circulated to members vide LC Paper No. CB(2)2254/98-99(02) dated 10 June 1999)

Section 66 of the Interpretation and General Clauses Ordinance (Cap. 1)

14. In reply to the Chairman's question, Mr Johannes CHAN said that the presumption of exclusion in section 66 of Cap. 1, i.e. the "State" was not bound by statutes save by express provisions or by necessary implication, was not consistent with the spirit of Article 22 of the Basic Law. The Bar Association's view was that there was no need for a presumption of legislative immunity for "the State" in the laws of Hong Kong. He said that there could be two alternatives to deal with the matter. Firstly, section 66 could be repealed, or secondly, section 66 could be amended to reverse the presumption so that in the absence of contrary intention, all laws should bind the State, where "State" referred to the HKSAR Government and the "State" organs in Hong Kong.

15. Acting Solicitor General (SG(Ag)) said that Article 22 of the Basic Law was an important part of Hong Kong's new constitutional order and the Administration accepted the view that those bodies referred to in the Article should abide by the laws of Hong Kong unless there were good policy justifications for an exemption. The Administration had to provide sufficient reasons for the consideration of the Legislative Council (LegCo) whenever it proposed new legislation which did not bind certain Mainland bodies in the SAR. It was difficult, however, to state in precise terms what the general principles were as to the granting of exemptions, since the applicability of a law was fundamentally a matter for the Administration and the LegCo to deal with on a case by case basis.

16. SG(Ag) emphasized that the Administration took the view that section 66 of Cap. 1 was not inconsistent with the Basic Law. He said that section 66 served a purpose in law drafting to reflect the legislative intent. The effect of it was that, if legislation should bind the Government or certain "State" organs, some express provisions had to be set out in order to achieve that purpose. On the contrary, if a piece of legislation was not intended to bind the Government or certain "State" organs in the SAR, then the legislation would simply be silent on that point, and section 66 of Cap. 1 would apply. He said that the Administration did not agree with the Bar Association's view that the presumption of exclusion in section 66 was something outdated in the common law world which contravened the principle of equality of law, since in only two of the provinces in Canada had such presumption been restricted, but not abolished. Other common law jurisdictions still retained the presumption of exclusion. SG(Ag) further advised that the Administration had all along stressed the point that treating Government organs differently from individuals was not by itself contrary to the rule of law or equality before the law because Government had completely different functions from ordinary individuals. There were many respected legal writers and authorities who shared the view that it was proper to deal with public bodies differently from individuals.

17. Having regard to SG(Ag)'s advice that section 66 of Cap. 1 was a drafting provision, the Chairman and Ms Emily LAU asked whether LegCo Members could introduce a private Member's Bill to amend or to repeal section 66, which would not relate to Government policy.

18. LA pointed out that the adapted reference of "the State" in section 66 of Cap. 1 had come into effect since 1 July 1997. By virtue of Article 8 of the Basic Law, the laws previously in force in Hong Kong, except those that contravened the Basic Law and subject to any amendment by the LegCo, had been maintained and become the laws of the SAR on 1 July 1997. The principle of statutory interpretation in section 66 of Cap. 1 applied to existing laws and Ordinances. If section 66 was repealed or amended with the consequence of changing the principle of interpretation, it could directly impact on existing laws and Ordinances in relation to their applicability or non-applicability to "the State" as defined in Cap. 1. LA added that while the policy intention of section 66 could be reviewed, the applicability of the law to "the State" had to be looked at in the context of individual Ordinances, and that any amendment to a particular Ordinance had to be in the form of an amendment bill.

19. In response to the Chairman, Mr Johannes CHAN said that the effect of reversing the presumption of immunity in section 66 of Cap. 1, aside from policy consideration, involved a change of law drafting practice which was a technical issue. He acknowleged that the comments made by the LA needed to be looked at in reviewing section 66 of Cap. 1.

20. SG(Ag) advised that the issue in respect of a review of section 66 of Cap. 1 involved both policy and law drafting. There were policy considerations underlying every law drafted and the drafting should reflect the particular policy. As the law presently stood, once legislation was enacted, it should be interpreted in accordance with the principle in section 66 of Cap. 1.

Bar 21. The Chairman summarized that, according to the views of the Bar Association as expressed in its submission, an express presumption of legislative immunity for "the State" in section 66 of Cap. 1 was not necessary and there was a strong case that the continued application of such presumption should be reviewed. For the purpose of further pursuing the matter, the Chairman invited the Bar Association to put forward a proposal to address these issues for the consideration of the Panel.

22. The Chairman also requested the Administration to comment on the points made in the Bar Association's submission to the Panel.

(Post meeting note : The Administration's response to the Bar Association's submission has been circulated to members vide LC Paper No. CB(2)2254/98-99(01) dated 10 June 1999).

23. Members agreed that the matter should be further discussed by the Panel at an appropriate time.

III. Legal Aid Policy Review

(Consultation Paper on Legal Aid Policy Review 1997;
LC Paper Nos. CB(2)207/98-99(02) and 845/98-99(04) previously issued for the meeting on 15 September 1998;
LC Paper No. CB(2)1324/98-99(05) circulated before the meeting; and
LC Paper Nos. CB(2)1359/98-99(01) & (02) and CB(2)1370/98-99(01) tabled at the meeting)

24. Deputy Director of Administration (DDA) advised that the Administration's paper (LC Paper No. CB(2)1324/98-99(05)) followed-up on previous discussions by the Panel regarding the Legal Aid Policy Review 1997 and explained the Administration's considerations on certain issues of interest arising from the Review. Subject to members' comments, the Working Group aimed at finalizing its recommendations as soon as practicable and proceed with the necessary legislative amendments. It was the Administration's intention to introduce the relevant amendment bill within the current legislative session.

25. The Administration's paper dealt with three issues, namely, the Director of Legal Aid's first charge on property recovered or preserved; contribution rates and assessment of disposal income. The recommendations with respect to these issues were -

to maintain the recommendations of the Working Group that the present arrangement under section 18A of the Legal Aid Ordinance should be retained and that the Director of Legal Aid (DLA) should have the discretion to waive or reduce the interest accrued on the DLA's first charge if he was satisfied that it was just and equitable to do so in the circumstances (under section 18A, DLA would have a first charge on property recovered or preserved if there was unpaid contribution or the total contribution was less than the net liablility of DLA in the case, and a 10% interest would be charged per year until the outstanding sum was repaid where such had been agreed to by the client);
to retain the current method of determining the contribution payable by an aided person under the standard scheme, based on his financial resources;
for cases under the Supplementary Legal Aid Scheme (SLAS), in line with the practice under the standard scheme, the aided persons should also be required to pay an interim contribution to the legal costs regardless of the outcome of the proceedings. The maximum contribution for a case which turned out to be unsuccessful was about $42,000, i.e. the same as that under the standard scheme. For successful cases, the current arrangement under which the aided persons had to contribute the sum of total legal costs and 15% of the property recovered should be retained; and
for the purpose of determining disposable income of legal aid applicants, the expenditure of the lowest 50% households as revealed in the Household Expenditure Survey should be used as the index for deductible personal allowance. This new index was considered to be more appropriate than the Comprehensive Social Security Allowance (CSSA) rates in describing the expenditure pattern of lower-middle class households which were the target group for legal aid services.

The Law Society of Hong Kong's views

26. In response to the Chairman, Mr Patrick MOSS said that the Law Society had no objection to the above proposals, but it suggested that the requirement for SLAS applicants to pay an application fee should be removed. This suggestion was made on the basis of equal treatment, since SLAS applicants were required to pay an interim contribution at the same maximum rate as that for the standard scheme under the present proposal.

27. DLA responded that under the new proposal in relation to SLAS, the sum total of the application fee of $1,000 and the interim contribution of $42,000 would be the maximum amount payable by an aided person who happened to lose his case. If the case was won, the application fee would be returned to the aided person. He added that the SLAS provided an extra avenue to assist people who might not be eligible for assistance under the standard scheme. SLAS was operating on a self-financing basis. A sufficient fund would mean that more people in need would be able to benefit from the scheme.

28. Policy and Administration Coordinator, LAD supplemented that very often cases under the SLAS were settled out of court. The contribution payable by the aided persons in such cases would be less because of the reduced legal costs.

29. Ms Emily LAU considered that the Legal Aid Department should step up publicity to ensure that legal aid applicants would know in advance the requirement to make contribution to the legal costs incurred.

30. Mr Raymond HO advised that the Law Society would further discuss with the DLA concerning the arrangement for deferred payment to assigned solicitors regarding their failure to comply with Section 19A.

Computation of disposable income

31. As requested by the Chairman, DLA explained the calculation set out in LC Paper No. CB(2)1370/98-99(01) which illustrated how computation of disposable income would be affected by using the proposed new index for deductible personal allowance as described in paragraph 25(d) above. In the example given, an applicant earning a monthly salary of $25,000 who failed to pass the means test under the current method of calculation using the CSSA standard, would become eligible under the new proposal.

32. Mr LEE Cheuk-yan opined that it would be more appropriate to use the median household expenditure as the indicator in calculating living allowances so that more households would become financially eligible for legal aid services. He further pointed out that due assistance should be provided to old-aged or unemployed applicants. Therefore, in assessing eligibility, rather than relying solely on the applicant's income earned in the 12 months prior to application, the Administration should also take into consideration the applicant's future earning capacity.

33. In response, DLA said that under the existing arrangement, the financial resources of an applicant was taken to be the sum of his annual disposable income and disposable capital. The Legal Aid Ordinance provided the DLA with the authority to exercise flexibility in assessing applications having regard to the merits of the case. The future income prospect of an applicant would be a relevant factor for consideration. With regard to deductible living allowance, the Administration had yet to decide on the best method of calculation.

34. Mr LEE Cheuk-yan reminded the Administration that the DLA's discretion in granting legal aid must be consistently applied to all applications.

Extending legal aid to next of kin in coroner's inquests

35. Mrs Miriam LAU relayed a comment made by Mr Martin LEE, who had left the meeting at that juncture. According to Mr LEE, he disagreed with the Administration's view expressed in paragraph 9 of LC Paper No. CB(2)845/98-99(04) that coroner's inquests were not to establish civil liability. He opined that the result of an inquest would have a direct bearing on a party's decision as to whether or not to proceed with civil litigation in relation to the case. He considered that legal aid should be extended to next of kin in cases of "significant public interest" as discussed at the Panel's meetings on 15 September 1998 and 15 December 1998 respectively.

36. The Chairman called upon the Administration to consider the Panel's views carefully before it finalized its recommendations and proceeded with the necessary legislative amendments.

IV. Administration of Justice (Miscellaneous Provisions) Bill 1999
(LC Paper No. CB(2)1324/98-99(06) circulated before the meeting; and CB(2)1363/98-99(01) tabled at the meeting)

37. DDA took members through the following major amendments to various court-related Ordinances as proposed in the Bill -

removing the requirement that judicial proceedings should be adjourned when the red rainstorm warning signal was hoisted;
streamlining the mechanism for appointing judicial officers in various courts and tribunals on a temporary basis; and
making minor technical amendments to the various Ordinances (detailed in LC Paper No. CB(2)1363/98-99(01)).

38. In response to Ms Emily LAU, the Administration advised that the proposal to continue with all judicial proceedings when a red rainstorm warning signal was in force was considered justified because, according to past experience, the weather condition under a red rainstorm warning situation only had a minimal effect on the conduct of most activities in the community. In particular, the weather and traffic conditions did not prevent the parties concerned from attending the court. Therefore, a removal of the requirement to adjourn court proceedings would eliminate confusion and minimize inconvenience of court users and save the court's time and resources. At present, any judicial proceedings might be continued during a red rainstorm warning. To ensure that the courts would function as smoothly and effectively as possible when the new arrangement was in force, the Judiciary, after the enactment of the Bill, would remind judges and judicial officers to be flexible and to exercise their discretion regarding adjournment when one party did not turn up when a red rainstorm warning signal was hoisted. Where necessary, staff members of the Judiciary would duly advise the parties of the courts' arrangements in the particular circumstances of a rainstorm warning.

39. The Administration further advised that the legal professional bodies had been consulted on the proposal. The Law Society had indicated support whilst the Bar Association was expected to give its views shortly. The Bill was intended to be introduced into the LegCo for Members' consideration on 31 March 1999.

40. The meeting ended at 6:20 pm.

Legislative Council Secretariat
6 July 1999