PLC Paper No. CB(2) 194
(These minutes have been seen
by the Administration and cleared
with the Chariman)
Ref : CB2/BC/47/95
Minutes of the Twentieth Meeting of the Bills Committee
on the Legal Services Legislation (Miscellaneous Amendments) Bill 1996
held on Thursday, 5 June 1997 at 2:30 pm
in the Conference Room A of the Legislative Council Building
Members Present :
Hon Fred LI Wah-ming (Chairman)
Hon Mrs Selina CHOW, OBE, JP (Deputy Chairman)
Hon James TO Kun-sun
Hon Andrew CHENG Kar-foo
Hon IP Kwok-him
Hon Ambrose LAU Hon-chuen, JP
Hon Margaret NG
Members Absent :
Hon Ronald ARCULLI, OBE, JP
Hon Mrs Miriam LAU Kin-yee, OBE, JP
Dr Hon LEONG Che-hung, OBE, JP
Hon Emily LAU Wai-hing
Dr Hon Philip WONG Yu-hong
Hon Howard YOUNG, JP
Hon Christine LOH Kung-wai
Hon Albert HO Chun-yan
Dr Hon LAW Cheung-kowk
Hon Bruce LIU Sing-lee
Hon Mrs Elizabeth WONG, CBE, ISO, JP
Public Officers Attending :
- Mr R C ALLCOCK
- Deputy Law Officer
Attorney Generals Chambers (AGC)
- Mr Duncan BERRY
- Senior Assistant Law Draftsman
- Mr Wesley WONG
- Senior Crown Counsel
- Ms Carmen CHU
- Senior Crown Counsel
Clerk in Attendance :
- Ms Doris CHAN
- Chief Assistant Secretary (2)3
Staff in Attendance :
- Mr Jimmy MA
- Legal Adviser
- Miss Flora TAI
- Senior Assistant Secretary (2)3
I.Matters arising from previous meetings
Members noted that the Law Society of Hong Kong (the Society) had confirmed in its letter dated 4 June 1997 (issued vide LegCo Paper No. CB(2) 2570/96-97) that: (a) it was prepared to refer the existing Probate Scale to the Costs Committee and the matter had been referred to the Probate Committee of the Society for its action; (b) the Probate Scale was binding upon members of the Society; and (c) in the event that the Costs Committee had set a scale of probate fees, the Society would not attempt to establish, implement or enforce an alternative probate scale.
II.Scrutiny and discussion of Committee stage amendments
Committee stage amendments to be proposed by the Attorney General
2. Upon invitation by the Chairman, Mr R ALLCOCK briefed members on the Committee stage amendments (CSAs) to be proposed by the Attorney General which were set out in his letter dated 2 June 1997 (issued vide LegCo Paper No. CB(2) 2546/96-97). He explained that clause 8 (Senior Counsel) attempted to address members wish that there should be two sub-categories of Senior Counsel, namely, those practising barristers and those who were appointed on a honorary capacity. The proposal had been sent to the Hong Kong Bar Association (the Bar) and the Society for comment. To his understanding, the proposal was broadly acceptable to the legal profession with the exception that the Bar opposed conferring the title of honorary Senior Counsel to solicitors. In this connection, Miss Margaret NG informed members that she was consulting the Bar and might move a CSA in this respect. Miss NG further asked and Mr ALLCOCK responded that the Administration was consulting the Judiciary and would consult the Bar on the drafting. He would try to finalize the CSAs by the following Tuesday or Wednesday.
3 With reference to the drafting of the new clause 8, Miss Margaret NG made the following comments: (a) the first square bracket in clause 8(4) was necessary; (b) the second square bracket was not necessary because a person could be appointed for his distinguished service to international law; and (c) inclusion of the last square bracket was appropriate. In response to Miss NGs enquiry about the operation of new clauses 19(2) and 19(3), Mr ALLCOCK explained that various consequential amendments in Schedule 1 referred both to solicitor corporations and foreign lawyer corporations together. If they were to be implemented separately, these new clauses would have the effect that references to both solicitor corporations and foreign lawyer corporations in the consequential amendments would be read as if only one type of corporations provisions in relation to the other type were brought into operation. Miss NG also asked and Mr ALLCOCK responded that it was necessary to add the proposed new clauses 20A to 20E to the Bill, instead of making amendments to the subsidiary legislation which was a normal practice, because these amendments had to come into effect by 1 July 1997.
Committee stage amendments to be proposed by the Bills Committee
4. Upon invitation by the Chairman, Legal Adviser briefed members on the CSAs to be moved by the Chairman on behalf of the Bills Committee as set out in LegCo Paper No. CB(2) 2579/96-97. He explained that these CSAs were to reflect the Bills Committees decisions at the last meeting in respect of: (a) non-statutory scale fees; (b) scale fees for conveyancing; (c) composition of the Costs Committee; and (d) contractual provisions requiring the purchaser to pay the vendors legal costs for the sale of units in new developments. In this connection, Mr ALLCOCK informed members that the Administration did not object to the proposed deletion of clause 16 in respect of non-statutory scale fees as the Society was prepared to refer the existing Probate Scale to the Costs Committee. Miss Margaret NG also asked and Legal Adviser pointed out that section 74(3)(d) of the Legal Practitioners Ordinance (Cap. 159) (the Ordinance) would be amended by Item 111 of Schedule 1 in the Bill and no further amendment was necessary to effect the Bills Committees decision to retain scale fees.
Committee stage amendments to be proposed by Hon Margaret NG
5. Miss Margaret NG then proceeded to brief members on her proposed CSAs which had been issued vide LegCo Paper No. CB(2) 2506/96-97. She explained that proposed deletion of clause 17(f) and clause 20 would not be necessary as relevant CSAs would be moved by the Chairman on behalf of the Bills Committee. However, it was necessary to dispel any doubt by amending section 56(1) to the effect that scale fees made by the Costs Committee should prevail over agreements entered into between a solicitor and his client if members supported retaining the scale fees. Miss NG further drew members attention to a letter dated 4 June 1997 from the Society setting out why it supported the proposed amendment to section 56(1) of the Ordinance which had been issued to members vide LegCo Paper No. CB(2) 2589/96-97.
6. Members noted the letter dated 30 May 1997 from Mr R ALLCOCK setting out the Administrations comments on Hon Margaret NGs proposed CSAs which had been issued vide LegCo Paper No. CB(2) 2533/96-97. In response to Miss Margaret NGs enquiries, Mr ALLCOCK explained that: (a) it was not inconsistent to allow contracting out even with the existence of a system of scale fees; (b) such a position had existed in England for almost one hundred years; and (c) section 56(1) of the Ordinance clearly reflected that it was the legislative intention to allow a solicitor and his client to contract out in a case if they considered appropriate. He took the strong view that the proposed amendment was not directly tied with abolition of scale fees and therefore members could keep existing section 56 in the Ordinance even though they supported retaining the scale fees. He queried why the Society supported such a fundamental change to section 56(1) since it had all along claimed that the existing system of scale fees had been working well. Mr ALLCOCK reiterated that there was no inconsistency in the Administrations position that scale fees being unfair should be abolished even though solicitors were allowed to contract out. Miss NG further asked and Mr ALLCOCK referred to Annex C to his letter of 30 May 1997 and confirmed that it had all along been the Administrations stance on the matter. Miss NG then remarked that it was unfair as the whole issue of scale fees might be considered in a different way by the Bills Committee if such a stance had been made clear to members in the first place. In this connection, Mr James TO asked and Mr ALLCOCK informed members that a recent court case had been settled in which the Society would not proceed to conduct any disciplinary action against a solicitors firm which had not followed the scale fees.
7. Miss Margaret NG opined that the proposed amendment to section 56(1) was directly linked to the Bills Committees decision to retain scale fees and therefore suggested members to consider including the amendment in the CSAs to be moved by the Bills Committee. In response to members enquiries, Legal Adviser pointed out that the proposed amendment was not necessarily related to retaining scale fees although there was a relationship between the two. It was the decision of the Bills Committee that the existing system of scale fees were to be retained and the table of costs chargeable for conveyancing as listed the Second Schedule of the Solicitors (General) Costs Rules was to be kept. Item 69 in Schedule 1 of the Bill was needed as a consequential amendment to amend section 56(1) of the Ordinance to incorporate the references to solicitor corporations only. He added that the legal effect of section 56(1) did expressly allow a measure of flexibility so that a solicitor and his client could agree on remuneration regardless of any rules made under section 74 so long as it was fair and reasonable according to Rule 5 of the Solicitors (General) Costs Rules. Mr IP Kwok-him then asked and Legal Adviser said that the proposed amendment to section 56(1) was necessary if the Bills Committee made a policy decision that there was no contracting out from the scale fees set by the Costs Committee.
8. After discussion, a majority of members supported the amendment to section 56(1) proposed by Hon Margaret NG and it was agreed that the amendment would be moved by the Bills Committee. However, Mr Andrew CHENG did not share the view.
Committee stage amendments to be proposed by the Demoractic Party
9. Mr Andrew CHENG briefed members on the amendments proposed by the Democractic Party which were tabled at the meeting and the revised version was subsequently issued to members after the meeting vide LegCo Paper No. CB(2) 2611/96-97. With reference to the proposed amendment to new section 34A(3), Mr Andrew CHENG asked and Legal Adviser undertook to give an opinion after the meeting as to whether the amendment was within the ambit of the Bill.
10. Members noted that if the Bill was to resume its Second Reading debate on 23 June 1997, the Bills Committee had to report to the House Committee on 13 June 1997. In this regard, the deadline for giving notice to resume Second Reading debate of the Bill would be 6 June 1997 and the due date for giving notice of CSAs would be 13 June 1997.
IV.Any other business
11. Members agreed that Legal Adviser would vet the Chinese text of the CSAs to be proposed by the Attorney General on behalf of the Bills Committee.
12. As regards the reference to section 5 in section 74(5) of the Ordinance, Legal Adviser asked and Mr ALLCOCK pointed out that it was a mistake in cross-reference and if drafting of the relevant English legislation had been followed, the reference should have been section 56. However, the Administration would not deal with the matter by way of making further amendments to the Bill.
13. The meeting ended at 4:25 pm.
Provisional LegCo Secretariat
19 August 1997
Last Updated on 27 October 1997