Panel on Administration of Justice and Legal Services ( Minutes ) 27 May 99

Legislative Council

LC Paper No. CB(2)61/99-00
(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, 27 May 1999 at 10:00 am
in Conference Room A of the Legislative Council Building Members Present:

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

Members Absent :

Hon Margaret NG (Chairman)
Hon Mrs Miriam LAU Kin-yee, JP

Public Officers Attending :

Item IV
Department of Justice
Mr Michael SCOTT: Senior Assistant Solicitor General
Ms Agnes CHEUNG: Senior Government Counsel
Legal Policy Division
Mr Thomas LAW: Senior Government Counsel
Prosecutions Division
Item V
Department of Justice
Mr Michael SCOTT: Senior Assistant Solicitor General
Ms Agnes CHEUNG: Senior Government Counsel
Legal Policy Division
Ms Kitty FUNG: Government Counsel
Legal Policy Division
Item VI
Department of Justice
Mr Michael SCOTT: Senior Assistant Solicitor General
Ms Agnes CHEUNG: Senior Government Counsel (Legal Policy Division)
Item VII
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
Mr Albert LAI: Chief Systems Manager, ITSD
Item VIII
Mrs Carrie YAU: Director of Administration
Miss Susie HO: Deputy Judiciary Administrator (Development)
Mr David LEUNG: Assistant Judiciary Administrator
Ms Rosanna LAW: Assistant Director of Administration

Attendance by Invitation :

Item IV
Hong Kong Bar Association: Mr Graham HARRIS
The Law Society of Hong Kong: Mr Melville BOASE
Item V
Hong Kong Bar Association: Ms Susan KWAN
The Law Society of Hong Kong: Mr Anthony W K CHOW, President; Mr Michael J LINTERN-SMITH; 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

In the absence of the Chairman, the Deputy Chairman took the chair.

I. Confirmation of minutes of meeting
(LC Paper No. CB(2)1966/98-99)

2. The minutes of the special meeting held on 22 January 1999 were confirmed.

II. Information paper issued since the last meeting
(LC Paper No. CB(2)1970/98-99(01))

3. Members noted the Administration's interim reply issued under LC Paper No. CB(2)1970/98-99(01)on 14 May 1999 in relation to the progress of the review of the applicability of the Personal Data (Privacy) Ordinance to "State" organs stationed in the SAR.

III. Items for discussion at the next meeting
(LC Paper Nos. CB(2)2086/98-99(01) and (02))

4. Members noted the list of follow up actions required of the Administration (LC Paper No. CB(2)2086/98-99(02)) and agreed that the Administration should be requested to expedite actions on the outstanding items.	clerk

5. Members agreed that the following items would be discussed at the next regular meeting on 15 June 1999 -

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

6. In relation to item (a) above, Ms Emily LAU suggested and the meeting agreed that information on the following should be sought from the Judiciary -

the existing number of judges from other common law jurisdictions appointed to sit on the Court of Final Appeal (CFA);
whether the Government was intending to increase the number of judges on the list; and
whether any judges on the current list had indicated that they were no longer interested to sit on the CFA.

IV. Proposed abolition of the corroboration rules for sexual offences
(LC Paper Nos. CB(2)2086/98-99(03) and 2130/98-99(01))

7. At the invitation of the Deputy Chairman, Senior Assistant Solicitor General (SASG) referred to the Administration's paper (LC Paper No. CB(2)2086/98-99(03)) and briefed members on the proposals to abolish the corroboration rules in sexual offence cases and to introduce the taking of evidence of witnesses outside Hong Kong by live-television link. These proposals were contained in the Evidence (Amendment) Bill, which was about to be introduced into the Legislative Council (LegCo). In respect of sexual offences, it was proposed that the requirement for corroborative evidence be removed, and the lack of a warning about the danger of convicting without corroborative evidence no longer be treated as a ground for appeal.

The views of the Hong Kong Bar Association

8. At the invitation of the Deputy Chairman to respond to the proposals, Mr Graham HARRIS said that the position of the criminal Bar was that it was strongly opposed to the abolition of the corroboration rules, particularly with regard to the proposed removal of the requirement under common law for the judge in a jury trial to give a warning about the danger of convicting on the uncorroborated evidence of the complainant alone. He said that human experience had shown that in many sexual cases, girls and women did sometimes make false complaints, for all sorts of reasons and sometimes with no reason at all, which were very easy to fabricate but extremely difficult to refute. The corroboration rules and the requirement to give a corroboration warning were safeguards which evolved from judicial experience and had been tried and tested for decades. Should these safeguards be removed, there would be an unacceptable risk that innocent persons might be wrongly convicted. He added that whereas the majority of complainants in sexual offence cases were of the female gender, the argument of discrimination against victims of sexual offences was not a valid reason for abolishing the safeguards, which applied regardless of the sex of the victim or of the defendant.

9. The Deputy Chairman referred members to a letter which was addressed to the Chairman by Mr Christopher COGHLAN expressng views similar to those of Mr HARRIS (tabled at the meeting and subsequently circulated to members vide LC Paper No. CB(2)2130/98-99(01)).

The views of the Law Society of Hong Kong

10. In response to the Deputy Chairman, Mr Melville BOASE said that the Law Society did not have time to consider the proposal to abolish the corroboration rules in depth. He personally shared the views of Mr HARRIS. He said that one had to be extremely careful in considering removing safeguards in a system of administration of justice where members of the public were entitled to know the elements of a particular offence; what conduct would constitute the offence and what types of evidence were required to prove the offence. The more that these safeguards were removed, the more "flimsy" the evidence would be to prove the offence.

11. In response to Ms Emily LAU, Mr BOASE informed members that the Law Society in its previous submission on the former Bill introduced into LegCo in 1996 supported the proposed abolition of the corroboration rules and preferred the English position relating to the giving of a warning. However, the Law Society would now like to reserve its position pending a fuller review of the issues in question.

Points raised by members

Proposed abolition of the corroboration rules in sexual offences

12. Regarding the requirement for the trial judge to give a corroboration warning to the jury, Mr Martin LEE enquired about the different treatment accorded to evidence of witnesses in common assault cases and evidence of witnesses in indecent assault cases. Mr HARRIS said that evidence in sexual cases very often involved only the words of the complainant against the defendant. Time and experience showed that, for this type of cases, a complainant falsely incriminating the accused was not infrequent. This justified the need for corroboration warning and for the jury to give due weight to such a warning in considering the evidence. After all, having fully looked at the evidence, the fact that there was no corroboration did not preclude the jury from convicting in a particular case. For other types of cases, such as wounding cases or cases of robbery or burglary, there was usually strong evidence implicating the accused, apart from the evidence of the victims. Mr HARRIS added that in his years of experience of prosecuting and defending in sexual offence cases, particularly in rape cases where the act was in most cases conducted in private, a vast number of cases involved the contentious element of whether there was consent between the parties. Mr BOASE agreed that the issue of consenting parties constituted a major distinguishing feature of sexual cases as compared with other offence cases.

13. The Administration brought to the attention of members that

there were many non-sexual cases which involved words of the complainant only; and
a number of appeals involving sexual offences, notwithstanding strong evidence, were allowed on ground of technicality based on the corroboration rules or due to mere failure of magistrates or judges to direct on the rules.

14. Mr Martin LEE asked whether a "half-way house" approach would be acceptable to the Bar Association, i.e. the direction of a corroboration warning by the trial judge was required only where the question of consent was at issue in a given case. In response, Mr HARRIS said that he felt uncomfortable about compartmentalization of cases and leaving it to the judge's discretion as to whether or not a warning should be given. He considered there should be consistency in all sexual cases with respect to the mandatory giving of a corroboration warning.

15. Mr Martin LEE referred to the comment made by the Administration earlier on at the meeting that there had been cases in the past where the convictions were quashed because the judges/magistrates had failed to direct a warning of convicting on the unsupported testimony of a single credible prosecution witness. He said that such fact, be that as it may, did not constitute a valid ground for abolishing the corroboration warning. He pointed out that in summing up evidence before a jury, the judge was under a duty to use his experience and judgment to assist members of the jury to test the evidence before relying on it. In fact, judges had a set of fairly standard guidelines to facilitate them in performing such role. Regarding the approach adopted in other jurisdictions as to the matter of warning, Mr LEE said that he was attracted to the U.K. model in which the trial judge, having had the benefit of discussion with counsel of both sides concerning the nature and evidence of the case, was allowed to exercise a general discretion as to whether or not a warning should be given to the jury of the need for caution in assessing evidence of witnesses which might be unreliable.

16. Mr HARRIS said that the reservation of the criminal Bar with regard to the U.K. position was that leaving the matter to the general discretion of the judge could result in the situation of the judge in a particular case failing to give a warning when in fact he should have given it. This could lead to inconsistency which should be avoided.

17. Ms Emily LAU asked whether the views of the criminal Bar represented the general position of the Bar Association. Mr HARRIS advised that members of the Bar Association did not hold a unanimous view on the matter. Those members of the Bar Association who were not practising criminal law largely verged on the indifferent. Some had expressed support for the proposed abolition of the corroboration rules for sexual offences, in line with the approach adopted for the evidence of accomplices. However, the criminal Bar was almost unanimous in their view and strongly resisted the Administration's proposal.

18. Ms Emily LAU referred members to a letter dated 27 April 1999 from the Secretary for Justice to the Chairman of the House Committee of LegCo which mentioned that the proposed amendment to the Evidence Ordinance to abolish the corroboration rules for sexual offences was a positive step in the right direction to implement the recommendations of the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW). She asked to what extent, in the Administration's view, the proposed amendment conformed to the spirit of the recommendations of CEDAW, in view of the argument that the corroboration rules had nothing to do with sexual discrimination.

19. In response, Senior Government Counsel (SGC) said that the present proposal to abolish the corroboration rules was viewed as a gender-related issue because, very often, victims in sexual offence cases were of the female gender. However, the Administration was not pursuing the matter purely on the basis of gender discrimination. The main objective of the proposal was to eliminate the different treatment given to evidence in sexual cases and other categories of cases. In this respect, the Administration was of the view that the proposed abolition of the corroboration rules in sexual offence cases conformed to the spirit of the recommendations of CEDAW. At Ms LAU's request, the Administration undertook to provide a written reply on this point.

Giving of evidence by live-television link

20. Mr James TO enquired about whether sufficient precautions were in place to ensure that witnesses outside Hong Kong would not be subject to threats or other undue influences when they gave evidence abroad by live-television link.

21. SGC replied that safeguards would be provided for in the arrangements for the taking and receiving of evidence made with other jurisdictions, such as that the witness concerned would have legal representation available during the entire process. Depending on the particular circumstances of the case, law enforcement officers in the overseas jurisdiction might also be involved. She added that any giving of evidence in this way would be through application to the Court, with agreement between the parties concerned. The Court could impose specific conditions for the evidence-giving if it approved the application.

22. Mr James TO said that the Administration should provide more justifications for the proposal, apart from reasons such as inconvenience and expense of travelling as stated in paragraph 29 of Administration's paper. He also considered that the legal representation provided to witnesses giving evidence outside Hong Kong should be mutually acceptable to the prosecution and the defence. Furthermore, the legislation should set out in detail all the necessary arrangements, including a clear explanation of the role of the Court. The Administration noted his view.

Conclusion

Bar Association and Law Society 23. In anticipation of a Bills Committee which would be formed for the detailed scrutiny of the Bill after its introduction into LegCo, members invited the Bar Association and the Law Society to provide a submission with their concluded view on the matter.

24. Members also requested the Administration to provide information on the following -

other common law jurisdictions which still retained the corroboration rules for sexual offences; and
cases where the convictions were quashed because the judges/magistrates had failed to give a warning to the jury of the danger of convicting on the uncorroborated evidence of the victim alone.

Legislative timetable

25. In reply to the Deputy Chairman, the Administration advised that the proposed Bill was scheduled to be presented to the Executive Council on 15 June 1999 and then to be introduced into LegCo on 7 July 1999.

V. Legal Practitioners (Amendment) Bill 1999
(LC Paper Nos. CB(2)2086/98-99(04), 2123/98-99(01) and 2145/98-99(01) and (02))

26. At the invitation of the Deputy Chairman, SASG briefly introduced the Administration's paper (LC Paper No. CB(2)2086/98-99(04)). He said that the object of the paper was to seek a preliminary view from the Panel on the proposed amendments to the Legal Practitioners Ordinance (Cap. 159) (the Ordinance) to improve certain aspects of the law governing solicitors and barristers which were unsatisfactory.

The views of the Hong Kong Bar Association

27. In response to the Deputy Chairman, Ms Susan KWAN summarized the Bar Association's submission (in LC Paper No. CB(2)2123/98-99(01)) on the proposed amendments as follows -

The new admission criteria proposed for barristers, including passing any required examinations, would remove the right of U.K. barristers to be admitted in Hong Kong on the basis of their U.K status. However, existing section 27A of the Ordinance allowed those who had been admitted as a barrister in other jurisdictions listed in Schedule 1 of the Ordinance, e.g. Canada and Australia and who had worked in the Department of Justice for at least seven years to be admitted as a barrister in Hong Kong. This would create an anomalous situation such as a person who had been called to the English Bar and who had worked in the Department of Justice for seven years would have to take examinations, whereas another person who had the same working experience but got qualifications from Canada was not required to take examinations under section 27A. The Bar Association considered that the new admission criteria should apply to all those who sought admission on the basis of qualifications acquired outside Hong Kong and that existing section 27A of the Ordinance should be repealed;
The Bar Association considered that transitional provisions should be provided in the Bill to protect the rights of those who sought admission to the Hong Kong Bar on the basis of their U.K. qualifications before the new admission requirements came into effect. This could also avoid a mismatch which might arise when the existing route for admission by virtue of U.K. qualifications was abolished and before the new mechanism for admission was put in place by subsidiary legislation;
The residency requirement of "three consecutive months immediately before admission", which was imposed for solicitors, was unlikely to be workable in the case of barristers in view of the differences between the two branches of the profession. For one thing, one had to bear in mind that the period of pupillage which was required to be served by applicants to the Bar was substantially shorter than the period of training for solicitors. The Bar Association proposed a requirement of six months' residency to tie in with the proposal of the Bar Council to provide in subsidiary legislation that a person would not be called to the Bar until he had completed six months' pupillage and was in a position to apply for a limited practising certificate under section 31(2); and
Regarding ad hoc admissions, proposed section 27(4) only required an applicant to have the "qualification acquired outside Hong Kong to engage in work that would, if undertaken in Hong Kong, be similar to that undertaken by a barrister in the course of ordinary practice as a barrister in the High Court or Court of Final Appeal (CFA)…" There was no requirement for actual experience in such work. The Bar Association held the view that to qualify for admission under the new section 27(4), a person should have actual advocacy experience of at least 10 years.

The views of the Law Society of Hong Kong

28. Referring to the draft Bill and the submission of the Law Society of Hong Kong to the Administration (tabled at the meeting and subsequently circulated to members vide LC Paper Nos. CB(2)2145/98-99(01) and (02) respectively), Mr Anthony CHOW said that the major concern of the Law Society was in relation to clause 11 of the Bill which proposed that a new category of "employed barristers" be created. At his invitation, Mr LINTERN-SMITH elaborated on the views of the Law Society.

29. Mr LINTERN-SMITH said that under the Bill, a barrister in this category would be issued with an "employed barrister's certificate" and be allowed to instruct a practising barrister on behalf of his or her employer without the intermediary of a solicitor. The Law Society considered that the concept of "employed barristers" as contemplated in the Bill was a radical departure from the way in which the legal profession was currently structured, nor did it fit in with the training and the much vaunted independence of barristers. Mr LINTERN-SMITH further advised that the concept of employed barristers was first explored in a Consultation Paper on Legal Services published by the Administration back in 1995. At the time, the Law Society acknowledged the view that for the purpose of protecting the public interests in the form of reduced costs for legal services, persons who had the qualification of a barrister and were under a legitimate employment to provide some form of legal advice to their employers, should be allowed to seek advice directly from barristers in private practice without the services of solicitors. The Law Society then accepted this very narrow extension of the exemption to the principle that only solicitors would instruct practising barristers. However, with the present proposal to create under the law a new category of lawyers, namely, employed barristers holding an employed barrister's certificate who could directly instruct practising barristers, there could be significant implications for the legal profession. In the opinion of the Law Society, the matter should be explored further with great caution and with substantive input from the two branches of the profession.

Points raised by members

"Employed barristers" being issued with an "employed barrister's certificate"

30. In response to Mr Martin LEE, Mr LINTERN-SMITH said that the Law Society did support the proposal of allowing a barrister who was employed by a company to instruct a practising barrister directly. However, the Law Society did not agree to the proposal of issuing practising certificates. Instead, the intended purpose of the amendment could be achieved by deleting clause 12 (proposed section 31C(1)-(4)) and introducing a simple provision which provided that "any person who has been called to the Bar in Hong Kong and who is legitimately employed in a contract of employment for a period of at least 12 months shall be entitled to give instructions directly to a practising barrister on behalf of his or her employer."

31. Ms Susan KWAN said that the expression of "a new category of employed barristers" had given rise to confusion. She explained that "employed barristers" had been in existence for a long time. Under the code of the Bar Association, an "employed barrister" referred to a properly qualified barrister employed under a contract of employment to provide legal services exclusively to his or her employer. However, an employed barrister was not allowed to instruct a practising barrister directly without retaining a solicitor. The present proposal merely sought to remove that restriction. She said that the Bar Association was of the view that the amended legislation should clearly distinguish the difference between an "employed barrister's certificate" issued to employed barristers and a "practising certificate" held by barristers in private practice, to avoid misunderstanding of the functions and roles of the two types of barristers. Ms KWAN further clarified that, under the proposed legislation, a person holding a current employed barrister's certificate would not be allowed to practise as a barrister holding a practising certificate. On the other hand, there was also no question of a barrister holding a current practising certificate to be issued with an employed barrister's certificate.

32. With regard to Mr LINTERN-SMITH's proposed amendment highlighted in paragraph 30 above, Ms Susan KWAN said that under clause 12 of the Bill, an employment of at least 12 months was only one of the satisfying conditions, but not a necessary condition, for the issuing of an employed barrister's certificate.

33. In response to the Deputy Chairman, SASG said that an employed barrister's certificate was intended to provide a formal recognition of the status of an employed barrister as defined in the Bill. It would not entitle an employed barrister to extra functions, other than to instruct a practising barrister without retaining a solicitor.

34. Mr Albert HO shared the concern that confusion might arise from the reference to "employed barristers" and the issuing of employed barrister's certificates. He said that the common understanding about barristers was that they were engaging in advocacy work and that they worked independently.

35. Ms Susan KWAN advised that the Code of Conduct of the Bar Association specified three types of barristers, namely, practising barristers, employed barristers and barristers who had been called to the Bar but had not satisfied the requirement of pupillage. In order to stamp out possible abuse and misunderstanding, the Bar Association had proposed that in future, any barrister who applied for a practising certificate would have to make a declaration in a specific form that he intended to practise as a practising barrister. At the moment, no such declaration was required. Accordingly, when this proposal was put into practice, people holding a practising certificate must necessarily be barristers engaging in private practice.

Power of the Bar Council to make rules

36. Referring to a relevant item on the outstanding list of the Panel, Legal Adviser (LA) pointed out that while the Bar Council currently had the power under section 30(4) of the Ordinance to prescribe fees by way of notice, the Chief Justice had in practice been exercising the same power under the general provision of section 72(1). LA suggested that when providing for a rule-making power of the Bar Council in the Bill, this point should be clarified to avoid ambiguity.

37. Ms Susan KWAN responded that section 30(4) would be repealed with the passage of the Bill. The Bar Association had proposed to the Administration that the new section 72AA should clearly delineate what the Chief Justice and the Bar Council were empowered to do.

Conclusion

38. The Deputy Chairman requested the Administration to give full consideration to the concerns expressed in the Panel's discussion, which would be followed up by a Bills Committee to be set up to study the Bill in detail after the Bill was introduced.

VI. Statute Law (Miscellaneous Provisions) Bill 1999
(LC Paper No. CB(2)2086/98-99(05))

39. SASG advised members that a number of enactments needed technical and largely non-controversial amendments because they were obsolete, inconsistent or anomalous. Furthermore, it was necessary to put beyond doubt the validity of certain items of subsidiary legislation which had not been tabled before the LegCo before they came into effect. The Administration was prepared to deal with these matters by way of the above Bill, which was scheduled for introduction into the LegCo on 30 June 1999. The Administration's paper (LC Paper No. CB(2)2086/98-99(05)) provided a detailed elaboration of the items of the Bill.

Discussion

Subsidiary legislation deemed laid before LegCo

40. LA advised that issues relating to the effect of the 19 items of subsidiary legislation not duly laid before LegCo had been discussed by the Subcommittee to study issues relating to the tabling of subsidiary legislation in Legislative Council (the Subcommittee) whose preliminary view was that the tabling requirement should not affect the effect of subsidiary legislation. However, the Subcommittee had noted that there were conflicting but equally respectable views on the issue of legal effect. In this connection, the Subcommittee was prepared to further consider the Administration's proposal to clarify the matter by way of deeming provisions in principal legislation. One of the purposes of the Bill was to put it beyond doubt that these items of subsidiary legislation should have legal effect, by enacting provisions to deem them as having been duly laid. According to the Administration, this followed U.K. precedents.

41. LA said that the Bill also dealt with the confusion caused by the publication of two Commencement Notices for Ozone Layer Protection (Controlled Refrigerants) Regulations. As the first in 1993 was not tabled, a second one was made and tabled in 1998. The Subcommittee was of the view that the 1998 Notice should have no force or effect. The Bill sought to clarify the position regarding the legal status of the 1993 Notice.

42. LA further said that the Bill also proposed to indemnify persons from all liability (if any) incurred as a result of failure to table the subsidiary legislation as required under section 34 of the Interpretation and General Clauses Ordinance (Cap 1), and to maintain prosecutions, actions or legal proceedings commenced before the coming into operation of the Bill.

Conspiracy committed before commencement of Crimes (Amendment) Ordinance 1996

43. In reply to Mr James TO's question, SGC advised that the existing section 159E of the Crimes Ordinance (Cap. 200) was ambiguious because it did not spell out whether or not acts of conspiracy committed before the commencement of that section on 2 August 1996 for which proceedings had not been started might be prosecuted. She said that the intent was that all such acts could be prosecuted under the common law. The present proposal was to set this out for avoidance of doubt. She said that the proposed amendment was not prompted by actual cases of misinterpretation of section 159E giving rise to litigation.

Abrogation of the "year and a day" rule

44. SGC informed members that the "year and a day" rule was a common law rule which forebade the conviction of a person of the offence of homicide if the victim did not die within a year and a day after the injury was inflicted. The rule was now considered to be unnecessary and undesirable in light of the medical and technological advances in treatment and life support made since the rule was first established. She added that many common law jurisdictions had abolished the rule, detailed information on which could be found in the Law Reform Commission's Report published in June 1997. The Report recommended the abolition of the rule.

45. In reply to Mr James TO, SGC said that the Administration had no statistics on precedents to which the "year and a day" rule had applied.

Items for inclusion in the Bill

46. Mr Albert HO asked whether or not the legal profession could propose amendment items to be included in the proposed Bill. SGC replied that it was a regular annual exercise for the Secretary for Justice as well as the Director of Administration to introduce an omnibus bill respectively for the purpose of effecting minor amendments to remove anomalies and technical inconsistencies in legislation. As the present Bill was scheduled for presentation to the Executive Council on 8 June 1999 and introduction into LegCo on 30 June 1999, any additional items could be proposed to the Administration for consideration for inclusion in the next exercise.

VII. Implementation of the Integrated Information System in Legal Aid Department
(LC Paper No. CB(2)2086/98-99(06))

47. In response to the Deputy Chairman, Director of Legal Aid (DLA) elaborated on the Administration's paper (LC Paper No. CB(2)2086/98-99(06)) which outlined the Integrated Information System and sought members' support for its implementation. In brief, the proposed new systems aimed at enhancing efficiency and effectiveness in case management, internal and outside communication, supervision of cases and enforcement of judgments as well as improvement of the quality of service provided to legal aid applicants. The total non-recurrent capital costs for implementation of the new systems were estimated to be slightly more than $50 million. With ongoing annual savings resulting from the new systems, a cost-benefit analysis indicated that this project could break even in the year 2004-05. The Administration aimed at submitting the proposal to the Finance Committee on 2 July 1999.

Points raised by members

48. Ms Emily LAU considered that the estimated reduction in the average application processing time from 59 to 57 days appeared to be far from satisfactory. In response, DLA said that the saving of two days in processing time was a conservative estimate. He pointed out that whilst the new systems would contribute greatly in areas such as means assessment, contribution calculation and on-line availability of case information etc., a substantial part of the work involved in application processing still had to be done manually. Furthermore, the duration of 57 days represented an average figure. Depending on the nature and complexity of cases, the actual processing time could vary significantly. He said that about 80% of the applications could be processed within the Department's pledged target of three months.

49. Members were of the view that average figures would not assist them in coming to an accurate assessment of the situation, particularly with regard to whether or not there had been delay in processing relatively simple applications. Members suggested that the Administration should provide more detailed information on legal aid applications, by breaking down the cases into different categories with reference to their complexity and specifying the processing time required for each category, when the proposal was submitted for the consideration of the Finance Committee.

VIII. Small Claims Tribunal (Amendment) Bill 1999
(LC Paper Nos. CB(2)1969/98-99(06) and (07); LSO/ADM CR 3/3231/91(99))

50. Director of Administration (D of A) briefed members on the Administration's paper (LC Paper No. CB(2)1969/98-99(07)) which was prepared in response to the following queries raised at the House Committee meeting on 23 April 1999 relating to the above Bill -

manpower arrangement to handle the additional workload in the Small Claims Tribunal (the Tribunal) resulting from the increase in financial jurisdictional limit from $15,000 to $50,000;
measures to resolve the issue of potential longer waiting time for litigation; and
present position regarding the proposal to increase the financial jurisdictional limits of the District Court.

Points raised by members

Manpower arrangement and waiting time in the Tribunal

51. Members were concerned about whether manpower resources were adequate to handle the additional workload resulting from the increase in financial jurisdictional limit of the Tribunal.

52. In response, the Administration said that when it originally consulted the Panel in January 1999 on the Bill, the then proposal was to increase the limit to $35,000. In an effort to further lower litigation costs for the public and having re-examined the capacity of and resources available at the Tribunal, the Administration revised the proposed limit to $50,000. It was estimated that about 10 000 cases per year would flow from the District Court to the Tribunal as a result of the newly proposed financial jurisdictional limit of the latter. This was about 3 000 cases more than the previous estimate for the proposed limit of $35,000. To cater for this situation, resources had been reserved for the Judiciary to create an additional post of Adjudicator and necessary support staff. Furthermore, with the enactment of the Small Claims Tribunal (Amendment) Ordinance, the Adjudicator would be empowered to direct a party to comply with his order within a specified period of time, failing which the claim might be dismissed, struck out, stayed, or judgment entered. This should deter parties from wilfully wasting the Tribunal's time and therefore enhance the efficiency of the Tribunal in adjudicating cases.

53. The Administration further advised that the Judiciary regularly reviewed the operation of the Tribunal and introduced measures to minimize court-waiting time. Such measures included temporary deployment of manpower resources to deal with any sudden surge in the number of cases filed, dedicating a court to deal with group claims and familiarizing litigants with the procedure of the Tribunal by distributing user-friendly information leaflets. So far, the Tribunal had been able to process cases within its target waiting time of 60 days.

Review of financial jurisdictional limit of the Tribunal

54. Ms Emily LAU sought the Administration's view on the proposal of the Law Society that a provision for an automatic review of the financial jurisdictional limit on a biennial basis should be included in the Bill. D of A replied that the Administration was prepared to review the jurisdictional limits of various levels of courts more regularly in the future, say at two to three yearly intervals. Section 6 of the Small Claims Tribunal Ordinance provided that the financial jurisdictional limit of the Tribunal might be adjusted by way of a resolution of LegCo. The Administration would not support the Law Society's suggestion, if what it proposed was a purely administrative mechanism for automatic reviews without going through the relevant procedures for amending legislation and without being subject to the scrutiny of the public and LegCo. Furthermore, the Administration, in proposing changes, needed to look at a number of factors to ensure that the smooth operation of the Tribunal would be maintained.

55. Mr Albert HO opined that automatic adjustments of the jurisdictional limits of the courts was not workable as it involved a drastic and undesirable change in legal policy.

Transfer of cases to higher courts

56. Mr Albert HO pointed out that there were cases which would otherwise not be pursued if not for the lower litigation costs in the Small Claims Tribunal. At his request, the Administration agreed to provide information on the number of cases transferred from the Tribunal to higher courts in recent years.

Financial jurisdictional limits of the District Court

57. Members enquired about the present position regarding the proposal to increase the jurisdictional limits of the District Court. In view of the large number of cases that would be diverted from the District Court to the Small Claims Tribunal as a result of the increased jurisdictional limit of the latter, members expressed concern about the full utilization of the District Court. Members reiterated the need for the financial jurisdictional limits of the District Court to be increased correspondingly as soon as possible.

58. D of A assured members that the Administration was considering higher financial jurisdictional limits for the District Court in the light of the newly proposed limit for the Tribunal. It hoped to introduce the District Court (Amendment) Bill within this legislative session, as soon as a decision was taken in this regard.

Conclusion

59. Noting that the Small Claims Tribunal (Amendment) Bill had already been introduced into LegCo and the Administration had undertaken to introduce the District Court (Amendment) Bill without delay, members had no objection to the resumption of the Second Reading debate on the Small Claims Tribunal (Amendment) Bill.

60. The meeting ended at 1:00 pm.

Legislative Council Secretariat
28 September 1999