PLC Paper No.CB(2) 225
(These minutes have been seen
by the Administration and
cleared by the Chairman)
Ref : CB2/PL/AJLS
LegCo Panel on
Administration of Justice and Legal Services
Minutes of the Special Meeting
held on Monday, 2 June 1997 at 4:30 pm
in Conference Room A of the Legislative Council Building
Members Present :
Hon Margaret NG (Chairman)
Hon Andrew CHENG Kar-foo (Deputy Chairman)
Hon Martin LEE, QC, JP
Hon Mrs Miriam LAU Kin-yee, OBE, JP
Hon Emily LAU Wai-hing
Dr Hon Philip WONGYu-hong
Hon David CHU Yu-lin
Hon Ambrose LAU Hon-chuen, JP
Hon Bruce LIU Sing-lee
Members Absent :
Hon Ronald ARCULLI, OBE, JP
Hon Eric LI Ka-cheung, OBE, JP
Hon James TO Kun-sun
Hon Albert HO Chun-yan
Public Officers Attending :
- Attorney Generals Chambers
- Mr Tony YEN, JP
- Law Draftsman
- Mr Harry MACLEOD
- Deputy Crown Prosecutor
- Mr Kenneth YUEN
- Deputy Solicitor General (Acting)
- Mrs N DISSANAYAKE - for Item 1 only
- Senior Assistant Law Draftsman
- Judiciary Administrators Office
- Ms Alice TAI, JP
- Judiciary Administrator
- Mr David LEUNG
- Assistant Judiciary Administrator
- Administration Wing of the Chief Secretarys Office
- Mr Paul TANG
- Deputy Director of Administration
- Miss Cecilia YEN
- Assistant Director of Administration
Attendance by Invitation :
Faculty of Law of the University of Hong Kong
- Hong Kong Bar Association
- Ms Audrey EU, QC
- Mr Alan LEONG
- Council Member
- Law Society of Hong Kong
- Mr Vincent LIANG
- Mr Christopher C CHAN
- Council Member
- Mr Stephen HUNG
- Member of the Criminal Law & Procedure Committee
Faculty of Law of the City University of Hong Kong
- Mr Eric CHEUNG Tat-ming
- Mr D S HO, John
- Associate Professor
- Ms M F LEUNG, Priscilla
- Associate Professor
- Mr M W LAW, Anthony
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. Judicial Service Commission (Special Provisions) Bill 1997
(Legislative Council Brief issued by Chief Secretarys Office (Ref: CSO/ADM/CR 4/3221/96(97) Pt. 3))
At the invitation of the Chairman, Mr Paul TANG advised that the Bill only sought to introduce a technical amendment to ensure that there would be judges duly appointed to form a quorum for the first meeting of the Judicial Officers Recommendation Commission (JORC) to be held on 1 July 1997. In the light that neither the legal profession nor the LegCo Panel had been consulted on the Bill, the Chairman invited representatives of the legal profession to participate in the discussion for this item. In this regard, Mr TANG explained that the Administration had only briefed members of the JORC (Designate) because: (a) the proposed amendment was purely technical in nature; (b) the time schedule was very tight; and (c) the legal profession was represented in the JORC. However, the Chairman cautioned that representatives of the legal profession served on the JORC (Designate) in their personal capacity only. The Chairman then asked and Mr TANG responded that it was only after careful consideration that it was decided that it would be necessary to introduce the Bill to avoid any possibility of uncertainty in relation to the validity of appointment of a judge.
(Mr Alan LEONG of the Hong Kong Bar Association (the Bar) and Messrs Vincent LIANG, Christopher CHAN and Stephen HUNG of the Law Society of Hong Kong (the Law Society) joined the meeting at this juncture.)
2. The Chairman informed members that the Chairman of the Bar had informally indicated that she had no comment on the Bill which was technical in nature.
3. Mr Martin LEE queried why it was necessary to stipulate in the Bill that the appointment of the two judges would expire at the end of 1 July 1997. Mrs N DISSANAYAKE pointed out that it was presumed that they would be re-appointed. Mr Paul TANG added that the provision was needed because it was a special provision to allow these two judges to be deemed as having been appointed judges even though they had not gone through the formal appointment procedure. Legal Adviser advised that such a provision for transitional arrangement was an empowering provision for the appointment of a person who served as a judge on 30 June 1997 to be a member of JORC on 1 July 1997. However, Mr Martin LEE was of the view that the Bill did not serve any purpose as there should be a "through train" for all judges and other judicial officers, unless these two judges were to be appointed directly as members of the JORC. Mr LEE asked the Administration to give consideration to Article 93 of the Basic Law which stipulated that all existing judges might remain as judges and to Article 88 of the Basic Law which, in his view, only related to the appointment of new judges and not the re-appointment of existing judges.
4. In response to the Chairman, Legal Adviser pointed out that the Bill should prescribe expressly who would be empowered to make such appointment if it was to serve its intended purpose. Mr Paul TANG responded that Article 88 of the Basic Law clearly stated that judges of the Courts of the Hong Kong Special Administrative Region (SAR) should be appointed by the Chief Executive on the recommendation of the JORC. Mrs N DISSANAYAKE added that the Chief Executive had the power to appoint members of the JORC according to the JORC Ordinance.
5. As the issue needed longer time to consider and there were many other agenda items to discuss, Ms Emily LAU suggested and members agreed that the Panel should recommend the House Committee to set up a Bills Committee to scrutinize the Bill
II.Meeting with representatives from the Administration, the Judiciary, the legal profession, and the tertiary institutions on Use of Chinese in courts
6. The Chairman welcomed representatives from the Administration, the Judiciary, the legal profession, and the tertiary institutions to attend the meeting. The meeting then proceeded to review the progress in implementing use of Chinese in courts. The gist of the ensuing discussion is summarized in the following paragraphs.
Judiciarys Glossary on Legal Terms and Phrases
7. Members noted the paper provided by the Judiciary Administrators Office on the progress in producing a glossary of terms and phrases commonly used in courts by the Judiciary (the Judiciarys Glossary) which had been issued vide LegCo Paper No. CB(2) 2503/96-97(01). In this connection, Ms Alice TAI drew members attention to the Chief Secretarys reply of 28 May 1997 (issued vide LegCo Paper No. CB(2) 2503/96-97(03)) which indicated that the Legal Department would be happy to co-ordinate the dissemination of information and tools on the use of Chinese in court, including the glossary of legal terms and phrases commonly used. Ms TAI said that the Judiciarys Glossary would be published in loose-leaf edition as it would be convenient to edit. At the Chairmans suggestion, Ms TAI undertook to consider the feasibility of publishing a copy for reference by the legal profession and the tertiary institutions. She also agreed to consider providing the legal profession with copies of the glossaries on criminal law and family law at cost, if requested. Ms Emily LAU agreed that the Legal Department should be the co-ordinator but cautioned that the Judiciary had considered some of the translated terms and phrases in the glossary published by the Legal Department (the Legal Departments Glossary) not colloquial nor easily understood. In response to Ms LAUs enquiry, Ms TAI explained that the Judiciarys Glossary and the Legal Department Glossary were for different uses as the former was for colloquial use in court whereas the latter was compilation of Chinese legal terms in the authentic Chinese texts of Hong Kong statutory laws only.
|Judiciary Administrators Office|
8. In response to the Chairmans enquiry, Mr Eric CHEUNG said that the Judiciarys Glossary could serve as a useful tool for legal professionals but restricting it for internal use would defeat its purpose. He suggested the Judiciary to seek input from relevant tertiary institutions and the legal profession in the process of compiling the glossary. Mr John HO remarked that although the terms in the Legal Departments Glossary might seem to be difficult to comprehend at the early stage, legal practitioners would become familiar with the terms through usage. However, it was important to ensure consistency between these two glossaries. With reference to the publication of Chinese translation of the head-notes and sentencing guidelines of landmark cases in the "Hong Kong Lawyers", Mr Christopher CHAN said that it was more useful than merely publishing the translated terms and phrases. However, Mr Vincent LIANG pointed out that the translated terms of these head-notes and sentencing guidelines were not consistent with those in the Legal Departments Glossary. The Chairman then asked and Ms Audrey EU responded that it was essential to have an official glossary of English-Chinese legal terms and phrases in order to implement bilingualism in courts. An authoritative co-ordination body with participation from various parties in the legal field would be required. In this connection, Mr Tony YEN pointed out that the Legal Departments Glossary had been studied by the Bilingual Laws Advisory Committee which included representatives of the legal profession and was passed by the Legislative Council. It should therefore have authoritative status as far as the terms and phrases of the statue law were concerned. Closer liaison between the Judiciary and the Legal Department would be necessary in case of any inconsistency. Mr YEN also offered to provide advice if necessary when further edition of the Judiciarys Glossary was published. Ms Alice TAI informed members that reference had been made to the Legal Departments Glossary when the Judiciarys Glossary was compiled. In light of the views expressed, Ms TAI undertook to consult with the Judiciary and liaise with Mr YEN on the compilation of the Judiciarys glossary.
|Judiciary Administrator's Office|
An overall co-ordination mechanism for overseeing the implementation of a bilingual legal system in Hong Kong
9. Members noted that the Chairman had written to the Chief Secretary regarding the Panels proposal for a mechanism to be set up for overseeing the implementation of a bilingual system in Hong Kong. The Chairmans letter of 5 May 1997 and the Chief Secretarys reply of 28 May 1997 had been issued vide LegCo Paper Nos CB(2) 2214/96-97(01) and CB(2) 2503/96-97(03) respectively. The Chairman then invited members to give suggestion on a more detailed proposal for the Chief Secretarys further consideration.
10. In response to the Chairman, Ms Audrey EU remarked that although there was a number of existing channels of communication between various parties involved on the use of Chinese in courts, their terms of reference was very limited. She therefore agreed that there was such a need for an overall coordination mechanism. Mr Christopher CHAN suggested that apart from the legal profession, the general public should be represented in the coordinating body. Ms Audrey EU pointed out that in order for such a mechanism to fulfil its role, there was a need for visits and consultancy studies to be carried out. Surveys on students language ability would need to be conducted. As all these activities required financial resources, members and representatives shared the view that it should be a high level committee capable of determining the speed and direction of the process and meeting the resources implications involved. At Ms Emily LAUs suggestion, members and representatives recommended that the committee should be chaired by the Chief Secretary and should comprise representatives of the Attorney Generals Chambers, the Judiciary, the legal profession, the law faculties of the University of Hong Kong and the City University of Hong Kong, and lay members to represent consumer interests. Members also opined that the progress should be monitored on a regular basis by the relevant panel of the future legislature.
11. The Chairman then drew members attention to the six items suggested in the penultimate paragraph of her letter of 5 May 1997 to the Chief Secretary which called for a coordiniation mechanism which should deal with the wider issue of policy. In this connection, Ms Emily LAU was of the view that there was an urgent need for a mechanism to review and determine the speed and direction of the process and meeting the resources implications involved so that people could choose to use either English and Chinese in courts as they wished. The Chairman asked and Mr Christopher CHAN responded that although the Law Society recognized the need to implement bilingualism on the use of Chinese in law, it also had reservation on the present hasty speed in moving to such a direction. After consideration, members and representatives proposed the following terms of reference for the coordination mechanism -
- establish a clear statement of the policy and long-term goal of bilingualism in law;
- identify the special needs of Hong Kong with respect to a bilingual system so as to target and coordinate resources;
- set policy goals for each stage of the implementation of bilingualism;
- determine speed and direction for the process;
- coordinate efforts in the Administration, the Judiciary, the legal profession and the tertiary institutions in achieving the goals set;
- monitor progress; and
- ensure that consumer interest is looked after.
12. Members agreed that the Chairman would reply to the Chief Secretarys letter of 28 May 1997 on the proposed mechanism for overseeing the implementation of a bilingual legal system in Hong Kong according to the views expressed in paragraphs 10-11. Members further agreed that the draft reply should be sent for members and representatives of the legal profession and the tertiary institutions for comments before issue.
(Post-meeting note : The draft reply had been issued vide LegCo Paper No. CB(2) 2600/06-97 and the reply had been sent to the Chief Secretary on 13 June 1997.)
Supreme Court Civil Procedure (Use of Language) Rules
13. Members noted that the Bar and the Law Society had set out their views on the Supreme Court Civil Procedure (Use of Language) Rules (the Rules) in their submissions which had been issued vide LegCo Paper Nos. CB(2) 2522/96-97(02) and CB(2) 2503/96-97(02) respectively. Ms Alice TAI informed members that the amendments proposed by the Bar had already been accepted by the Steering Committee on the Use of Chinese in Courts (the Steering Committee) and reflected in the Rules as gazetted. Mr David LEUNG supplemented that: (a) the law draftsman of the Rules had confirmed that the Rules would not contravene sections 5(3) and 5(4) of the Official Languages Ordinance (Cap. 5); and (b) the Rules had taken the Bars view into account so that a party to any proceedings who was served with a document in an official language with which he was not familiar might request the party serving the document to provide the translation in the other official language. In this regard, Mr Alan LEONG pointed out that Rule 3 had not provided for any guidelines for implementation. The Bar should therefore be given the opportunity to give advice if court directions were considered necessary.
14. As regards the Law Societys views which were received after gazettal of the Rules, Mr David LEUNG informed members that their views had already been considered by the Chairman of the Steering Committee. Referring to paragraph 1(a) of the Law Societys submission, Mr LEUNG clarified that the Official Language Ordinance (Cap. 5) had not provided for a right to receive a court document in the official language with which a person was most familiar. It would be up to a court to decide having regard to the implications on litigation cost and the possible delay for the trial to be conducted in an expeditious and fair manner, when such a request was made. In response to the Chairmans enquiry, Mr Christopher CHAN said that the Law Society had no objection to the enactment of the Rules. However, the Law Society would urge the Steering Committee to take their views into account when the Rules were revised in the future. In this regard, Ms Emily LAU remarked that she shared the Law Societys view that no party should be forced to use either English or Chinese only in any proceedings. She suggested that such an essential viewpoint should be conveyed to the Steering Committee.
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III.Any other Business
15. There being no other business, the meeting ended at 6:35 pm.
Provisional Legislative Council Secretariat
19 August 1997
Last Updated on 20 October 1997