PLC Paper No. CB(2)193
(These minutes have been seen
by the Administration and cleared
by the Chairman)
Ref : CB2/BC/47/95
Minutes of the Nineteenth Meeting of the Bills Committee
on the Legal Services Legislation (Miscellaneous Amendments) Bill 1996
held on Thursday, 22 May 1997 at 8:30 am
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
Dr Hon LEONG Che-hung, OBE, JP
Hon Andrew CHENG Kar-foo
Hon IP Kwok-him
Dr Hon LAW Cheung-kwok
Hon Bruce LIU Sing-lee
Hon Margaret NG
Hon Mrs Elizabeth WONG, CBE, ISO, JP
Members Absent :
Hon Mrs Selina CHOW, OBE, JP (Deputy Chairman)
Hon Emily L AU Wai-hing
Hon James TO Kun-sun
Dr Hon Philip WONG Yu-hong
Hon Howard YOUNG, JP
Hon Christine LOH Kung-wai
Hon Albert HO Chun-yan
Hon Ambrose LAU Hon-chuen, JP
Public Officers Attending :
- Mr R C ALLCOCK
- Deputy Law Officer
Attorney Generals Chambers (AGC)
- Mr Wesley WONG
- Senior Crown Counsel
Clerk in Attendance :
- Mrs Justina LAM
- Assistant Secretary General 2
Staff in Attendance :
- Mr Jimmy MA
- Legal Adviser
- Miss Flora TAI
- Senior Assistant Secretary (2)3
IMatters arising from last meeting
Members noted that arising from the last meeting, the Administration had: (a) confirmed the view of the Judiciary in respect of the proposed status of Senior Counsel; and (b) proposed, as an alternative approach, a provision in the Bill to the effect that statutory rules should prevail in the event of any inconsistency between any non-statutory rules made by the Society and statutory rules made by the Costs Committee. The letter dated 21 May 1997 from the Deputy Law Officer/Attorney Generals Office issued vide LegCo Paper No. CB(2)2382/96-97 referred.
Clause 16 adding a new section 56A which invalidates non-statutory scale fees
2. Mr R ALLCOCK explained that: (a) non-statutory rules would have impact on clients which could only be dealt with through taxation; and (b) the proposed provision to give prevailing status to statutory rules could remove the solicitors obligation to follow non-statutory rules. However, most members present were of the view that a provision giving statutory rules a prevailing status expressly was not necessary and inappropriate on the grounds that: (a) non-statutory rules made by the Law Society of Hong Kong (the Society) did not have equal legal status to those made by the Costs Committee; (b) all these rules were subject to the review of the court according to the Solicitors (General) Costs Rules; (c) the Society as a professional body would not act irrationally by establishing rules that the Costs Committee had already made; and (d) the words "shall prevail" in the alternative proposal had an uncertain meaning. At Mrs Miriam LAUs suggestion, the Chairman asked the Clerk to seek confirmation from the Society that it would not establish another scale of charges if the same had already been set by the Costs Committee. In this connection, a vote was taken. Most members present, apart from one dissenting vote, agreed that clause 16 should be deleted from the Bill.
(Post-meeting note : The Society had confirmed in its letter of 4 June 1997 (issued vide LegCo Paper No. CB(2) 2570/96-97) that it would not attempt to establish, implement or enforce an alternative probate scale if the Costs Committee had already set up a scale of probate fees.)
3. Miss Margaret NG informed members that the Society had proposed an amendment to section 56(1) of the Legal Practitioners Ordinance (the Ordinance) to the effect that the first clause of the section should read "Subject to any rules made under section 74 that are in force,". Mr ALLCOCK cautioned that such a proposal would mean a substantial amendment to the law relating to scale fees in the light that: (a) the existing section 56 was designed to give freedom of contract and would allow solicitors and clients to enter into agreement for non-contentious business whether or not there were rules made by the Costs Committee; (b) the proposed amendment by the Administration arguably would allow solicitor and client to agree on a fee which was different from the scale fees; but (c) the proposed amendment by the Society would prevent solicitors and clients from contracting out from the scale fees. Miss NG remarked that if the Administration considered that the scale fees were not binding, it would not have spent the time to introduce legislative change to abolish them. At the Chairmans suggestion, Miss NG agreed to prepare a paper setting out the Committee stage amendment (CSA) to be proposed and its rationale for discussion at a future meeting. Members continued with the clause-by-clause examination of the Bill and the gist of the ensuing discussion is summarized in the following paragraphs.
II.Clause-by-clause examination of the Bill
Clause 17 amending section 74 to broaden the composition of the Costs Committee, and to prohibit it from setting scale fees for conveyancing work
Composition of the Costs Committee
4. Members noted that the Administration supported the proposal of having 4 solicitors, 3 ex-officios and 3 laypersons in the Costs Committee and would move a CSA accordingly.
5. As some members were of the view that the number of solicitors in the Costs Committee should be at least half of the total membership, Mr Bruce LIU proposed to consider having 6 solicitors, 3 ex-efficios and another 3 laypersons (including one consumer representative and two others with business background) which would maintain the existing balance between solicitor members and non-solicitor members. Miss Margaret NG and Mr Ronald ARCULLI said that the proposed composition was acceptable. Mr IP Kwok-him agreed that it was important to have a balance between solicitor and consumer interests. However, he had reservation on the proposed composition because it seemed to categorize the High Court Judge and the Registrar of the Supreme Court, who should be able to consider issues objectively and fairly, as representatives of the consumer interests. A vote was taken and members present agreed to support the composition division of 6:3:3 as proposed by Mr Bruce LIU. The Chairman therefore asked the Legal Adviser to prepare relevant CSAs accordingly. In this regard, Mr Andrew CHENG informed members that it was the stance of the Democratic Party that the Bill should give a nomination right to the chairman of the Consumer Council for nominating a consumer representative to the Costs Committee. Mr ALLCOCK responded that the Administration expected that the chairman of the Consumer Council would be consulted by the Governor in the nomination process. He further informed members that the Consumer Council had been invited to nominate a representative to the Costs Committee years ago but the invitation was declined because the Consumer Council opposed scale fees in principle. In this regard, Miss Margaret NG and Mr IP Kwok-him remarked that flexibility should be maintained and it was not necessary to stipulate rigidly the nomination right in the legislation. The Chairman therefore suggested Mr CHENG consult the Consumer Council and move a CSA if considered appropriate.
Quorum of the Costs Committee
6. With regard to the quorum for meeting of the Costs Committee, Miss Margaret NG and Dr LAW Cheung-kwok opined that the principle of having at least one representative from each group of members should be followed. However, Dr LEONG Che-hung expressed concern that any group could then block a proposal by not sending a representative to attend the meeting. Dr LAW pointed out that the Administration might need to intervene if a group of members deliberately acted to boycott a meeting. Miss NG suggested that only the presence of solicitor members should be required for a quorum as laypersons might not be interested in the discussion relating to every area of legal service. After discussion, most members were of the view that the quorum requirement should not be stipulated rigidly in the legislation and it should be up to the chairman of the Costs Committee to decide. Members agreed that the quorum of a meeting of the Costs Committee, based on its composition division of 6:3:3, should be 6 members, consisting of the Chairman and 5 other members.
Powers of the Costs Committee
7. With reference to proposed section 74(f)(6) which prevented the Costs Committee from making rules to fix any statutory scale fees in respect of conveyancing, Dr LAW Cheung-kwok said that he would support the Administrations proposal to abolish scale fees if the revised scale fees, which were currently under review by the Costs Committee, was found unacceptable, or if the review could not be completed before a decision on abolition of scale fees had to be made. He therefore urged that the Costs Committee should release relevant information, via informal channels if possible, for members to consider. In this regard, the Chairman reminded members that the chairman of the Costs Committee was preparing a report on the proposals made by the Society on scale fees in respect of conveyancing for the approval of the Chief Justice. The letter dated 15 May 1997 from the Judiciary Administrator issued vide LegCo Paper No. CB(2) 2308/96-97 referred. However, Mr Bruce LIU pointed out that proposed section 74(f)(6) might need to be deleted if it was eventually agreed that all rules in respect of remuneration of solicitors in non-contentious business were to be made by the Costs Committee. Dr LEUNG Che-hung informed members that the medical profession was opposed to scale fees in principle but it maintained that professional autonomy was also of primary importance. The medical profession would therefore consider the matter carefully on these principles. In this connection, Legal Adviser asked and Mr ALLCOCK confirmed that "by reference to a scale of rates or percentages" in proposed section 74(f)(6) referred to scale fees. Mr Andrew CHENG then asked and Mr ALLCOCK responded that if members supported abolition of scale fees, it was logical that proposed section 74(f)(6) should be enacted and it should be deleted if members supported to retain scale fees.
8. As members had divided views on the abolition of scale fees and some had not formulated their position, members agreed that no vote would be taken and it would be up to individual members to propose any amendment deemed necessary.
Clause 18 adding a new section 34A to the Conveyancing and Property Ordinance (Cap. 219)
9. The Chairman reminded the meeting that although some members supported the proposal as separate representation would be in the consumer interest, the majority of members present, when the clause 18 was discussed, opposed the proposal on the grounds that it was against freedom of contract and was of no real benefit to the consumers. Miss Margaret NG therefore suggested and members agreed that the Legal Adviser would prepare CSAs to be moved by the Bills Committee to delete clause 18 from the Bill and make any consequential amendments accordingly. In this regard, Mr Andrew CHENG pointed out that the Democratic Party as well as the Hong Kong Bar Association supported the principle of separate representation. In light of negative members views on clause 18, Mr CHENG asked whether the Administration would consider proposing a mandatory requirement for separate representation in the Bill. Mr ALLCOCK responded that the issue of separate representation was raised in the Consultation Paper on Legal Services. However, the Administration did not propose mandatory separate representation as a result of the consultation exercise on the grounds that although separate representation would be encouraged, consumers should have a free choice providing there was no severe financial disincentive. Legal Adviser also cautioned that in his view, a CSA stipulating mandatory requirement of separate representation, which was covered by the Solicitors Practice Rules, was not within the ambit of the Bill. He further explained that the clause was proposed on the basis of fair competition for consumer interests and it did not deal with separate representation in specific circumstances as required in the subsidiary legislation of the Ordinance.
Clause 20 and Schedule 2 repealing the scale fees for conveyancing
10. Mr ALLCOCK reminded members that clause 20 and Schedule 2 would need to be deleted if members decided to retain scale fees. In this connection, the Chairman asked and Legal Adviser agreed to prepare relevant CSAs with any necessary consequential amendments to abolish scale fees for members reference. Mr ALLCOCK also undertook to advise in this respect.
Clause 21 (Savings and transitional provisions)
11. Mr ALLCOCK informed members that: (a) most of the proposed amendments were purely consequential and were needed because of the proposal to create solicitor corporations and foreign lawyer corporations; and (b) some proposed amendments would not be needed because it was agreed to delete Part V relating to multi-disciplinary practices from the Bill.
12. 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.Date of next meeting
13. Members agreed that the next meeting would be held on Thursday, 5 June 1997 from 2:30 pm to 6:30 pm to study CSAs to be proposed. The Chairman therefore requested that members who would be moving CSAs should provide copies of their proposed amendments to other members before the meeting.
14. There being no other business, the meeting ended at 10:25 am.
Provisional LegCo Secretariat
19 August 1997
Last Updated on 27 October 1997