LegCo Paper No. CB(2) 240/96-97
(These minutes have been seen
by the Administration)

LegCo Panel on Administration of Justice and Legal Services

Minutes of Meeting for the Policy Briefing by the Attorney General held on Monday, 7 October 1996 at 4:00 pm in the Chamber of the Legislative Council Building

Members Present :
    Hon Andrew CHENG Kar-foo (Deputy Chairman/Chairman of the meeting)
    Hon Martin LEE Chu-ming, QC, JP
    Hon Mrs Miriam LAU Kin-yee, OBE, JP
    Hon James TO Kun-sun
    Hon Ambrose LAU Hon-chuen, JP
Members in Attendance :
    Hon CHAN Yuen-han
    Hon IP Kwok-him
Members Absent:
    Hon Margaret NG (Chairman)*
    Hon Ronald Arculli, OBE, JP#
    Hon Emily LAU Wai-hing#
    Hon Eric LI Ka-cheung, OBE, JP#
    Dr Hon Philip WONG Yu-hong#
    Hon David CHU Yu-lin#
    Hon Albert HO Chun-yan#
    Hon Bruce LIU Sing-lee#
Public Officer Attending :
    Hon J F Mathews, CMG, JP,
    Attorney General
Clerk in Attendance :
    Mrs Betty LEUNG
    Chief Assistant Secretary (2) 3
Staff in Attendance :
    Mrs Justina LAM
    Assistant Secretary General 2
    Miss Flora TAI
    Senior Assistant Secretary (2) 3

The Attorney General (AG) briefed members on his Policy Commitments as detailed in the Appendix. Members raised a number of questions on his Policy Commitments as well as his work programme for the coming year and the AG responded accordingly. The gist of discussion is summarised in the following paragraphs.

Assistance to the provisional legislature

2. The Chairman asked whether Attorney General’s Chambers (AGC) would, upon the request of the Chief Executive (Designate), brief the provisional legislature on legal matters for smooth transition. AG responded that the Governor had already stated in his 1996 Policy Address that the Hong Kong Government would give the greatest possible assistance to the Chief Executive (Designate) and would offer no assistance to the provisional legislature in its establishment or its operation. He declined to respond to the question of whether the AGC would or would not assist if such a request arose, but he reiterated that the existing LegCo was the only lawfully constituted legislature in Hong Kong.

3. Mr Martin LEE asked whether it was the duty of the AG to advise the Governor on any possible breach of the provisions of the Letters Patent. AG replied that he, being the Government’s chief legal adviser, would advise the Governor on all legal (including constitutional) matters. Mr LEE then asked whether the Government would take legal action by way of injunction against either any person who purported to act as a legislator sitting in the provisional legislature or the provisional legislature itself before 1 July 1997 for usurpation of the position of the existing LegCo. AG regarded it a hypothetical question. He said that the stance of the Hong Kong and British Governments on the provisional legislature had been made known on many occasions. Mr LEE expressed great disappointment at AG’s response in the light that even the Governor had no longer regarded the question of a provisional legislature as hypothetical. In this connection, the Chairman expressed concern how the Government could preserve the rule of law if the unlawful provisional legislature was to pass laws for Hong Kong. AG remarked that the best way to preserve the rule of law in Hong Kong was to allow the lawfully constituted LegCo to continue its four-year term.

Reports on "Surveillance and Interception of Communications" and "Overseas Uncompleted Residential Properties"

4. With reference to the publication of reports on "Surveillance and Interception of Communications" and "Overseas Uncompleted Residential Properties" during the next 12 months, Mr James TO expressed concern that in order for the necessary legislation process to be completed before 1997, it was necessary that the Law Reform Commission (LRC) should be urged to complete its task as soon as possible. Otherwise, he would have to move a Member’s bill relating to surveillance and interception of communication before 1996 drew to an end.

5. AG informed the meeting that the LRC’s Subcommittee on "Privacy" which included surveillance and interception of communication, would complete its final report in early November 1996. The report would be submitted to the LRC. He hoped that LRC would endorse the report for publication by the end of 1996. AG assured members that the intense public interest in and the urgency of the subject were fully recognized. The AGC and the LRC would try their best to ensure that the report be put forward as soon as possible. Mr James TO asked whether the Government would decide on not introducing relevant legislative proposal or giving it a lower priority when the report was published in Spring 1997 on the grounds that (a) the legislative work might not be completed with the legislative session and (b) there were limited resources in legislative drafting work given the huge number of bills needed to be completed for enactment before 1 July 1997. AG explained that the Security Branch was responsible for the overall policy aspect in this regard. Yet, he assured that the drafting of the relevant legislative proposal would be a priority item for the AGC once policy clearance to drafting was given. However, he was unable to pre-empt the decision of the Security Branch.

6. As regards the report on " Overseas Uncompleted Residential Properties", AG informed members that a LRC’s Subcommittee was formed in September 1996 and the consultation period would last until mid November 1996. The AGC was aware of the public interest in the subject. Although he expected a final report by Spring 1997, it might be difficult to give a time estimate when the result of the consultation period was not yet available.

Publicity campaign to promote local and international awareness of the rule of law in Hong Kong

7. Mrs Miriam LAU asked (a) whether the AGC would organise educational programmes for school, (b) what types of programmes would they be; and (c) whether there was any plan to incorporate legal knowledge into the formal school curriculum. AG informed the meeting that the AGC together with Radio Television Hong Kong (RTHK) had produced an educational video on Hong Kong’s legal system in Chinese and English. The AGC would liaise with the Education Department for a wide distribution among schools once the video was ready for release. The AGC in conjunction with the RTHK was also planning to produce a series of ten half-an-hour television drama programmes which would illustrate the essential elements of the legal system in Hong Kong. A booklet on the legal system in Hong Kong produced by the AGC, the updated version of which included a section on Basic Law, had also been distributed to all secondary schools. AGC’s counsel would participate in the annual LawWeek, as they had taken part this year, to deliver lectures and to lead visits for schools on legal system in Hong Kong. As regards incorporation of legal knowledge into formal school curriculum, AG undertook to liaise with the Education Department for a written reply on what had already been done in the formal school curriculum on legal education.AG

(Post-meeting note : AG’s written reply was issued to members vide LegCo Paper No. CB(2) 178/96-97 on 18.10.96.)

Advocacy in Chinese

8. Mrs Miriam LAU referred to the AGC’s new initiative in 1997-98 to organize training courses for government lawyers on advocacy in Chinese and urged that the Government should promote advocacy in Chinese in the private sector in order to develop bilingual litigation. AG agreed with Mrs LAU that involvement of the private sector was valuable on advocacy in Chinese. The Advocacy Institute of Hong Kong was therefore important to bring together government and non-government lawyers for the development of advocacy in Chinese. The lecture held in August 1996 on cross-examination in Chinese was well-received. Further lectures on plea in mitigation and application of Chinese on different branches of law were being planned in conjunction with the Advocacy Institute.

Formation of the Court of Final Appeal

9. Mr Martin LEE asked and AG replied that arrangements for the setting up of the Court of Final Appeal were in progress but the list of judges would not be drawn up until the formation of the Judicial Officers Recommendation Committee. However, the Judiciary Administrator was drawing up a set of draft rules of procedures in respect of the Court of Final Appeal, in consultation with the Hong Kong Bar Association and the Law Society of Hong Kong, which would replace the existing rules governing appeals in the Judicial Committee of the Privy Council. He also pointed out that there was a lot of preparation work and one of the immediate tasks was the transitional arrangement for processing appeals.

10. In the light that the Basic Law required the endorsement of the legislature of the Special Administrative Region for the appointment of judges for the Court of Final Appeal, Mr Martin LEE expressed concern on the legal basis for the appointment to be endorsed by the provisional legislature, since its legality was subject to challenge.

Setting up of the Attorney General’s Office

11. Mr Ambrose LAU referred to the office which had been set up in July 1996 to provide direct support to the AG in dealing with important government legal issues and asked (a) what these issues were; and (b) what the staff establishment was. AG said that the staffing proposal for the creation of the Attorney General’s Office, which had been discussed by the LegCo Establishment Subcommittee, included the creation of a new Principal Crown Counsel and upgrading of the post of Administrative Assistant to AG from Senior Administrative Officer to Administrative Officer Staff Grade C. He informed the meeting that the Principal Crown Counsel had been in post about two weeks’ ago and the Office had been working efficiently so far. AG further explained that the Office would deal with all issues within the scope of his responsibilities.

Localisation of laws

12. In the light that 17 Hong Kong Ordinances had been enacted to localise UK legislation which previously applied to Hong Kong, Mr Ambrose LAU enquired about the progress of localising the remaining 16 Ordinances. AG informed members that the Patents Bill had been introduced into LegCo and 4 LegCo slots had also been reserved for the Copyright Bill, the Registered Designs Bill, Submarine Telegraph Bill and a bill relating to whales and fisheries. Agreement with the Chinese side on the Fugitive Offenders Bill and the Carriage by Air Bill had been reached in the Joint Liaison Group (JLG). Other outstanding bills, which covered the areas of civil aviation, official secrets, transfer of sentenced persons, maritime conventions, telecommunication and commercial laws, would be introduced once agreement with the Chinese side had been reached. He pointed out that although each of these localisation projects was a complicated task, the drafting work itself however would be completed before 1 July 1997.

Surrender of Fugitive Offenders

13. Mr Martin LEE asked about the progress of negotiation with the Chinese side regarding arrangements of surrender of fugitive offenders after 1 July 1997. AG responded that the subject fell into the policy area of the Security Branch. As he understood, an agreement had been reached with the Guangdong authorities on bilateral arrangements for surrender of fugitive offenders. He undertook to forward Mr LEE’s question to the Security Branch. Mr LEE further asked why agreement was made with the Guangdong authorities only. AG explained that agreement with the Guangdong authorities was firstly reached because there had been close cross-border co-operation between the two places in criminal matters.AG

(Post-meeting notes : The Acting Secretary for Security had replied vide her letter dated 26 October which had been issued to members vide LegCo Paper No. CB(2) 291/96-97.)

Official Secret Acts

14. The Chairman asked about the policy stance of the AGC on the localisation of the Official Secrets Acts, in the light that the meaning of disclosure of official information under the Official Secrets Acts might be different from that of the theft of state secrets under the Basic Law. AG responded that the Government had put forward the proposal for localising the Official Secrets Acts to the Chinese side. Legislation would be introduced once agreement was reached in the JLG. In response to Mr Martin LEE’s enquiry, AG informed members that a separate set of proposals dealing with treason, secession, sedition and subversion under Article 23 of the Basic Law had also been forwarded to the Chinese side. Mr Martin LEE further asked whether the Government would disclose the relevant draft proposals to LegCo, particularly the Panel, in due course. AG responded that the matter was subject to the confidentiality clause of the JLG. However, he agreed to forward Mr LEE’s request to the Security Branch for a written reply.AG

15. There being no other business, the meeting ended at 11:15 am.
LegCo Secretariat
28 October 1996

* - out of town
# -- other commitments

Last Updated on {{PUBLISH AUTO[[DATE("d mmm, yyyy")]]}}