PLC Paper No. CB(2)192
(These minitus have been seen
by the Administration and cleared
with the Chairman)
Ref : CB2/BC/47/95
Minutes of the Eighteenth Meeting of the Bills Committee
on the Legal Services Legislation (Miscellaneous Amendments) Bill 1996
held on Tuesday, 20 May 1997 at 4:30 pm
in the Conference Room A of the Legislative Council Building
Members Present :
Hon Fred LI Wah-ming (Chairman)
Hon Ronald ARCULLI, OBE, JP
Hon Mrs Miriam LAU Kin-yee, OBE, JP
Hon Emily LAU Wai-hing
Hon Howard YOUNG, JP
Hon Christine LOH Kung-wai
Hon Andrew CHENG Kar-foo
Hon IP Kwok-him
Hon Ambrose LAU Hon-chuen, JP
Hon Bruce LIU Sing-lee
Hon Margaret NG
Members Absent :
Hon Mrs Selina CHOW, OBE, JP (Deputy Chairman)
Dr Hon LEONG Che-hung, OBE, JP
Hon James TO Kun-sun
Dr Hon Philip WONG Yu-hong
Hon Albert HO Chun-yan
Dr Hon LAW Cheung-kwok
Hon Mrs Elizabeth WONG, CBE, ISO, JP
Public Officers Attending :
- Mr R C ALLCOCK
- Deputy Law Officer
Attorney Generals Chambers
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
IMeeting with the Administration
Members noted that the Administration had responded to all the outstanding points arising from previous meetings which had been set out in three letters from the Deputy Law Officer dated 16 May and 19 May 1997 respectively (issued vide LegCo Paper Nos. CB(2) 2325/96-97(01), CB(2) 2328/96-97 and CB(2) 2347/96-97). The Chairman suggested and members agreed that the Administration would explain its position in respect of these outstanding points, if necessary, during the clause-by-clause examination of the Bill.
II.Clause-by-clause examination of the Bill
2. The Bills Committee then proceeded to clause-by-clause examination of the Bill from clause 1 to clause 16 and the gist of the discussion is summarized in the following paragraphs.
Clause 2 adding a new Part IIAA to the Legal Practitioners Ordinance (Cap. 159) (the Ordinance)
3. Members noted that the Administration would introduce a Committee stage amendment (CSA) to ensure that provisions in respect of solicitor corporations and foreign lawyer corporations could be brought into effect at different stages and the CSA would be provided the following week for members to consider. As proposed section 7C(3) empowered the Law Society of Hong Kong (the Society) to approve or refuse to approve the company or proposed company as a solicitor corporation upon receiving of an application, Miss Margaret NG informed members that the Society suggested that it should be allowed to charge a fee in the legislation. She therefore asked and Mr ALLCOCK responded that the Administration would not object to the Societys suggestion in principle and undertook to consider whether a specific provision was necessary.
Clause 7 adding a new section 8C relating to interest on solicitors clients accounts
4. Members noted that, given the lack of support for the proposal in the Bills Committee, the Administration would move a CSA to delete Part III in respect of interest on clients accounts from the Bill.
Clause 8 adding a new section 31A relating to the new status of Senior Counsel
5. Mr ALLCOCK informed members that the Administration supported the following proposals made by the Hong Kong Bar Association (the Bar) and supported by the Bills Committee -
- "standing at the Bar" should be a statutory criterion for the appointment of practising Senior Counsel;
- to be eligible for appointment as a practising Senior Counsel, a person must have practised as a barrister or advocate for at least 10 years;
- the Chinese term for Senior Counsel should be and not and
- there should be a statutory requirement for the Chief Justice to consult the Chairman of the Bar and the President of the Society in appointing Senior Counsel.
- Mr Howard YOUNG asked and Miss Margaret NG responded that the Bar had conducted an opinion survey, as explained by the Chairman of the Bar at the meeting with the Bills Committee on 17 January 1997, on the Chinese translation for "Senior Counsel" in 1995 which indicated a majority preference for the expression . It was therefore not surprising that individual barristers might have other preferences.
6. Mr ALLCOCK informed members that the Administration considered that, subject to the view of the Chief Justice, who was the appointing authority for Senior Counsel, the Bars proposal that the legislation should have different statutory provisions in respect of those who would be appointed as a practising Senior Counsel or on an honorary basis was possible. The Administration would inform members of its view in due course. Members also noted that the Administration had agreed to the Bars suggestion that the phrase "for the duration of those proceeding" in proposed section 31B (Status of visiting Queens Counsel) should read "for the purposes of those proceedings".
7. With regard to the difference of opinion between the Bar and the Administration as to who should be eligible for appointment as a Senior Counsel on an honorary basis, Miss Margaret NG informed members that the Chairman of the Bar had written to the Administration on 28 April 1997. She explained that the Bar was not opposed to the conferring of honorary title to solicitors but was of the view that separate title should be created. However, appointment of Senior Counsel or honorary Senior Counsel should be restricted to barristers. Miss NG pointed out that the term "counsel" was generally used for advocates and restricted to barristers. The term in England might not be misused because solicitors who had acquired extended rights of audience in England were eligible for appointment as practising Queens Counsel. In response, Mr ALLCOCK clarified that: (a) appointment of solicitors on an honorary basis in England could be made even though they were not practising advocates; and (b) the term "counsel" was not exclusively used for barristers as "Crown Counsel" in the Government could either be a barrister or a solicitor. Miss NG asked and Mr ALLCOCK responded that eligibility for the appointment of honorary Senior Counsel had not been included in the consultation exercise conducted in March 1995. The issue was a result of the discussion in the Bills Committee when members indicated a preference for different appointment systems for practising and honorary Senior Counsel. Miss NG then remarked that the original intention of the Administration was to maintain the status quo in relation to the appointment of Queens Counsel and yet conferring the title of honorary Senior Counsel to solicitors was a new idea. She therefore was of the view that the idea warranted more careful consideration and wider consultation. In particular, the legal profession should be consulted in advance. In this connection, Mr ALLCOCK pointed out that the Administration put forward such a proposal because the Bar had been emphasising that the relevant provisions should be in line with those of the United Kingdom.
8. Ms Emily LAU said that the Administrations proposal was acceptable as the proposed amendment would make it clear that appointment of a honorary Senior Counsel would not accord precedence before the courts. Mrs Miriam LAU also opined that very few solicitors would be given such a title by the Chief Justice on an exceptional basis. She therefore did not anticipate any problem. Mr Andrew CHENG and Mr IP Kwok-him shared the same view. However, Mr Bruce LIU expressed concern that conferring the title of honorary Senior Counsel to solicitors might confuse the public and blur the difference between the two branches of the legal profession. In this regard, Mr ALLCOCK informed members that the Judiciary Administrator, after consultation with Chief Justice, had indicated that the Judiciary was not in favour of restricting eligibility of honorary Senior Counsel to barristers. At Miss Margaret NGs request, Mr ALLCOCK agreed to put the Judiciarys view in writing for members information. After discussion, a majority of members present agreed with the Administrations proposal that a person should be eligible for appointment as a Senior Counsel on an honorary basis if he or she was a legal academic, a barrister or a solicitor who, in the Chief Justices opinion, had given distinguished service to the law.
Clauses 9 to 13 containing minor amendments in respect of the Barristers Disciplinary Tribunal
9. Members noted that the Administration would move two CSAs, as proposed by the Bar, to the effect that proposed section 34(1)(a) would read "no fewer than 6 and no more than 15 practising Senior Counsel and the drafting of proposed section 34(4) would be improved.
10. Miss Margaret NG asked and Mr ALLCOCK responded that the Bar did propose amendments of a drafting nature to proposed section 35(3) but the law draftsman was of the view that the provision was in order. In this connection, Mr Andrew CHENG asked what was the purpose of including the phrase "of any associated allegations of misconduct" in proposed section 35(3). Mr ALLCOCK explained that such a phrase came from a Bars suggestion, and was meant to ensure that the barrister under investigation would know what sort of case he or she had to answer. Mr CHENG further asked and Mr ALLCOCK said that it would be up to the Tribunal to decide whether adequate disclosure had been made according to the provision.
Clauses 14 and 15 in respect of multi-disciplinary practices
11. Members noted that the Administration would move a CSA to delete the provisions in respect of multi-disciplinary practices from the Bill.
Clause 16 adding a new section 56A which invalidates non-statutory scale fees
Impact on existing non-statutory scale fees in relation to probate work
12. To address members concern about the transitional arrangements if non-statutory scale fees were invalidated, Mr ALLCOCK informed members that the Administration would extend the transitional provision so that it covered a bill of costs issued in respect of services that, before the commencement of the section, had been agreed to be supplied.
Power to make non-statutory scale fees
13. Mr ALLCOCK stressed that only the Costs Committee was given the statutory authority to set scale fees in respect of solicitors non-contentious business. It would therefore be inconsistent with the legislative intention if the Society could make any mandatory non-statutory scale fees. Miss Margaret NG argued that section 74(3) of the Ordinance only stated that the Costs Committee might make rules providing for the remuneration of solicitors in respect of non-contentious business, it did not mean that it had to make rules for all kinds of non-contentious business. In addition, Miss NG drew members attention to section 74(5) of the Ordinance and remarked that rules made by the Costs Committee were to lessen any dispute regarding bills of costs of solicitors in respect of non-contentious business. She therefore expressed grave concern that the Administration had on one hand proposed to increase the number of non-solicitor members on the Costs Committee and expanded its power on the other. However, Mr ALLCOCK pointed out that although section 74(3) was permissive, the rules made by the Costs Committee did cover all kinds of non-contentious business including probate work as Rule 5 of the Solicitors (General) Costs Rules provided that in the case of any non-contentious business to which the Schedule relating to conveyancing scale did not apply, costs should be fair and reasonable, having regard to all the circumstances of the case. The Probate scale of the Society which was fixed exclusively by reference to the value of property, without having regard to all the circumstances, could not be considered to set fees that were fair and reasonable in all cases. Mr ALLCOCK stressed that: (a) the Administration had no intention to expand the power of the Costs Committee and the proposal was only to prevent the Society from making non-statutory scale fees which were inconsistent with the statutory functions of the Costs Committee; and (b) consumer representatives were not expected to be in a majority of the Costs Committee. Miss NG maintained that the legislative intention of section 74(3) was not for the Costs Committee to determine the remuneration of solicitors for all non-contentious work. She emphasized that the Costs Committee had not made any rules in respect of charges for probate work and thus the probate scale established by the Society had not actually clashed with any scale. Proposed section 56A was therefore not necessary. Mr Howard YOUNG remarked that as the Costs Committee had not made rules in respect of remuneration for solicitors in all kinds of non-contentious business, the Society should not be prevented from setting non-statutory scale fees on its own in those areas which would not covered by the Costs Rules. Miss NG also pointed out that if the Society did establish scale fees in respect of probate work which were not reasonable even though a Probate scale had already been set by the Costs Committee, these fees were subject to review of the court. Mr Ronald ARCULLI shared the view.
14. In response to Mr Ronald ARCULLIs enquiry about the purposes for introducing proposed section 56A, Mr ALLCOCK explained that the purposes were that: (a) the Law Society would not be able to set up non-statutory scale fees for conveyancing if existing statutory scale fees for conveyancing were abolished; (b) non-statutory scale fees for probate work which was inconsistent with the Costs Rules would be invalidated; and (c) given the generality of Costs Rules which covered all non-contentious work, the Society would not be allowed to create scale on any subject without going through the Costs Committee. In this regard, Miss Margaret NG asked and the Chairman drew members attention to a letter dated 9 May 1997 from the Society (issued vide LegCo Paper No. CB(2) 2236/96-97) which said that it did not oppose a suggestion that a Probate scale should be established by the Costs Committee. The Chairman then asked the Clerk to seek information from the Society as to whether and when it would make recommendations to the Costs Committee in respect of fees for probate work. In this regard, the Chairman asked and Legal Adviser explained that if proposed section 56A was to be deleted, the Law Society could still make rules in respect of scale fees for probate work which would be binding on its members even though they had no statutory force. At Miss Margaret NGs suggestion, the Chairman asked the Clerk to seek clarification from the Society about the binding effect of the Probate scale on solicitors. Mrs Miriam LAU pointed out that the Costs Committee all along had the power to make rules and the Costs Committee or the Administration should have intervened if the Probate scale established by the Society, which had existed for over 30 years, was considered unfair. It would not be appropriate to undermine the authority of a professional body in such a deliberate manner. Mr ALLCOCK argued that it was a matter of principle that scale fees were anti-competitive and any fixed charge should be determined by a statutory body which included consumer representatives.
15. Mr Howard YOUNG asked whether other provisions of the Bill would hinge on the enactment of proposed section 56A. Mr ALLCOCK explained that the section was related to the proposed abolition of scale fees for conveyancing. If the section was not enacted, the Society could still make non-statutory scale fees for conveyancing even though LegCo decided that statutory scale fees for conveyancing should be abolished. In this regard, Ms Emily LAU asked and Legal Adviser responded that if proposed section 56A(1) was not enacted, there was a possibility in theory that a set of non-statutory scale fees could co-exist with another set of statutory scale fees in respect of the same area of legal service and therefore would cause confusion to solicitors. Miss Margaret NG said that it was very unfair to assume the Society, as a professional body, would make a set of scale fees even though the Costs Committee had already made the same. She cautioned that the Society had representatives on the Costs Committee as well.
16. Mr Bruce LIU was of the view that proposed section 56A was not necessary but all fees including those for probate work should be set by the Costs Committee in the form of subsidiary legislation. He further opined that professional autonomy had to be respected and therefore 50% of the composition of the Costs Committee should be solicitor members. However, Mrs Miriam LAU remarked that it would be too rigid if all fees were to be determined by the Costs Committee although she agreed that decision of the Costs Committee should be final. She was concerned that there might be confusion if the Costs Committee had not made rules in a particular area of legal service. Ms Emily LAU asked and Legal Adviser responded that although an express provision could be included in the legislation to the effect that the rules made by the Costs Committee would have overriding effect, it might not be very tidy as far as implementation was concerned. In this regard, Miss Margaret NG pointed out that the court would as a matter of course give priority to the rules which were made by the Costs Committee in the form of subsidiary legislation. After discussion, a majority of members present was of the view that clause 16 should be deleted from the Bill.
III.Date of next meeting
17. The Chairman reminded members that the next meeting would be held on Thursday, 22 May 1997 at 8:30 am to continue clause-by-clause examination of the Bill.
18. The meeting ended at 6:35 pm.
Provisional LegCo Secretariat
19 August 1997
Last Updated on 27 October 1997