LegCo Paper No. CB(2)1442/96-97
(These minutes have been seen by
the Administration)

LegCo Panel on
Administration of Justice and Legal Services

Minutes of the Sixth Meeting held on Tuesday, 25 February 1997 at 4:30 pm in Conference Room B of the Legislative Council Building

Members Present :

    Hon Margaret NG (Chairman)
    Hon Andrew CHENG Kar-foo (Deputy Chairman)
    Hon Mrs Miriam LAU Kin-yee, OBE, JP
    Hon Eric LI Ka-cheung, OBE, JP
    Hon James TO Kun-sun
    Hon Albert HO Chun-yan
Members Absent :
    Hon Martin LEE Chu-ming, QC, JP*
    Hon Ronald ARCULLI, OBE, JP*
    Dr Hon Philip WONG Yu-hong*
    Hon David CHU Yu-lin*
    Hon Ambrose LAU Hon-chuen, JP*
    Hon Bruce LIU Sing-lee*
    Hon Emily LAU#

Public Officers Attending :

    Item No. IV & V

    Mr Stephen WONG
    Deputy Solicitor General

    Item No. V & VI

    Mr Paul TANG
    Deputy Director of Administration
    Mr Stephen FISHER
    Assistant Director of Administration
Attendance by Invitation :
    Item No. IV

    Law Society of Hong Kong

    Mr Christopher CHAN
    Mr Vincent LIANG
    Mr Patrick MOSS

    Item No. V

    Hong Kong Bar Association

    Mr Philip DYKES
    Member of the Bar Council
    Mr G J X McCOY
    Mr P Y LO
Clerk in Attendance :
    Mrs Betty LEUNG
    Chief Assistant Secretary (2) 3
Staff in Attendance :
    Mr Jimmy MA
    Legal Adviser
    Ms Doris CHAN
    Chief Assistant Secretary (2) 4
    Miss Flora TAI
    Senior Assistant Secretary (2) 3

I. Confirmation of minutes of the last meeting and matters arising

1. The minutes of the meeting held on 9 January 1997 were issued to members vide LegCo Paper No. CB(2) 1242/96-97. No amendment was received and these minutes were taken as confirmed.

Amount of legal aid services and ceiling for legal costs

2. Members noted that the Director of Administration had provided information, as requested at the last meeting, on the amount of legal aid services and the ceiling for legal costs which had been issued under cover of LegCo Paper No. CB(2) 1126/96-97.

Follow-up on Judge CAIRD case

3. Members noted that the replies from the Acting Chief Secretary and the Governor on the follow-up on Judge CAIRD case had been issued to members vide LegCo Paper Nos CB(2) 1111/96-97 and CB(2) 1138/96-97 respectively. In this connection, Mr James TO expressed strong dissatisfaction with the Governor's reply which formally declined the Panel's request to order a full and open inquiry into the Judge CAIRD case. He informed members that he was considering proposing a motion debate to discuss the matter at a LegCo sitting. Mr TO also suggested the Panel move a motion to condemn the Governor for the way he handled the case which would tarnish the rule of law in Hong Kong. The Chairman said that this being a serious matter, members should have advance notice of this motion and the chance to vote on it. She therefore suggested and members agreed that Mr James TO should put forward his motion in writing to be circulated to members. At the same time Legal Adviser was asked to advise on the Panel's constitutional position. Members further agreed that the issue would be an agenda item for the next meeting. In this regard, the Chairman also asked the Clerk to alert members that voting on the issue would be done by simple majority of the members present at the meeting. Mr James TO



II. List of information papers circulated to members of the Panel since the last meeting

4. Members noted the information papers circulated to members of the Panel since the last meeting as listed in Appendix I to the Agenda.

III. Date of next meeting and items for discussion

5. The next regular meeting would be held on Monday, 10 March 1997 at 4:30 pm. Members agreed that the next regular meeting should discuss:

  1. the legislative programme for the remaining 1996-97 LegCo session;
  2. general principles of the jury system and its implications on the legal system in Hong Kong (including related issues such as Attorney General's discretion in deciding the venue for trial and desirability to extend jury system to the District Court); and
  3. follow-up on Judge CAIRD case.

6. As regards agenda item a), Legal Adviser informed members that the issue had been discussed regularly at the weekly meeting of the Chairman of the House Committee with the Chief Secretary. The Administration had provided a list of 41 Public Bills which had to be passed by LegCo before 1 July 1997. As at the week before the meeting, 21 of them had not been introduced into LegCo. The Chairman then asked the Secretariat, on the basis of information available, to ascertain the list setting out the Public Bills which had to be passed by LegCo before 1 July 1997 and a further list of those Public Bills that had not been introduced into the LegCo as well as those that were introduced but had not been scrutinized by LegCo. In relation to agenda item b), the Chairman also asked the Clerk to re-circulate relevant papers for the Panel's special meetings on the use of Chinese in courts for members' reference and invite representatives from the Attorney General's Chambers, Office of the Judiciary Administrator and the Administration Wing of the Chief Secretary's Office to attend the meeting. Secretariat

7. With reference to item one of the list of outstanding items for discussion (Appendix II to the Agenda), Mr Albert HO undertook to report on the issue relating to rules set by judges in the conduct of court proceedings at the next meeting. Mr James TO informed members that he had received complaints about bailiff's work from time to time and therefore raised the issue about their operation and effectiveness as an item for future discussion. The Chairman then suggested and Mr TO agreed to provide more information on the complaints received to the Clerk for the Judiciary Administrator to respond. Mr Albert HO
Mr James TO

IV. China Legal Services (Hong Kong) Ltd

(LegCo Paper Nos. CB(2) 976/96-97, CB(2) 1281/96-97 & CB(2) 1311/96-97)

Legal requirement of registration for foreign lawyers practicing foreign laws in Hong Kong

8. At the invitation of the Chairman, Mr Stephen WONG informed members that: (a) the China Legal Services (Hong Kong) Ltd had been providing legal services in Chinese laws since 1987; (b) the Legal Practitioners Ordinance was amended in July 1994 which required foreign lawyers practising foreign laws in Hong Kong to register with the Law Society of Hong Kong (the Law Society) and empowered the Law Society with the regulatory power over them; and (c) the Legal Department had received formal complaint from the Law Society that the China Legal Services (Hong Kong) Ltd had not registered with the Law Society in September 1995. The Chairman then asked and Mr WONG confirmed that it was a legal requirement for the China Legal Services (Hong Kong) Ltd to register with the Law Society. After the complaint was received, the Legal Department had contacted the Law Society which was the regulatory body over solicitors and foreign lawyers in Hong Kong and the China Legal Services (Hong Kong) Ltd with a view to ensuring that the latter would comply with the legal requirement of registration with the Law Society. However, a grace period was considered appropriate as the legislation was only amended in July 1994.

9. The Chairman then invited and Mr Christopher CHAN explained to members that before the Legal Practitioners Ordinance was amended in July 1994, the Law Society had co-operated informally with the Immigration Department in monitoring foreign lawyers practising foreign laws in Hong Kong through procedures relating to the issuance of working permit. Yet, a local Hong Kong person who had a practising certificate in foreign law, or a non-local person who came to work in Hong Kong under cover of a working permit in other areas but provided legal services in foreign laws would not be subject to any monitoring. However, it would be a legal requirement for all foreign lawyers who practised foreign laws in Hong Kong to register with the Law Society after the Legal Practitioners Ordinance was amended. Mr CHAN informed members that although the China Legal Services (Hong Kong) Ltd had not yet registered with the Law Society as at the time of the meeting, the Law Society had been notified that it would proceed with the registration. In this connection, he cautioned that the case about the China Legal Services (Hong Kong) Ltd was under investigation by the Police and therefore it might not be appropriate for the Panel to discuss the case in detail.

10. Mr Albert HO and Mr James TO held the view that everyone must be equal before the law and everyone was presumed to have knowledge of the law. They therefore expressed concern that in view of the unusual attitude of the Legal Department had taken on the matter, the Administration appeared to be applying double standards in implementing legislation. It would set a bad precedent for law enforcement in the future and cause public anxiety. In this regard, Mr Stephen WONG said that no privilege or special handling was involved in allowing a grace period for the particular offence involved which was only created in 1994. Mr Andrew CHENG then asked who was ultimately responsible for enforcing the relevant legislation. In response, the Chairman asked and Mr Christopher CHAN responded that the Law Society was unable to conduct investigation work itself on foreign lawyers practising in Hong Kong due to the lack of resources. Mr WONG advised that Legal Department would refer any such complaints notified by the Law Society to the Police for investigation. As requested by members, Mr CHAN agreed to provide statistics of cases involving unregistered foreign lawyers practising in Hong Kong since the Legal Practitioners Ordinance was amended in 1994 for members' information. Mr HO also requested that the Legal Department should report to the Panel in writing on the matter after investigation by the Police had been completed.Law Society
Legal Department

Chinese translation of the term "foreign lawyer"

11. Mr Christopher CHAN drew members' attention to an extract from the New English-Chinese Dictionary and sections 2 and 39A of the Legal Practitioners Ordinance (issued under cover of LegCo Paper No. CB(2) 1311/96-97). He was of the view that the difficulty was probably caused by the Chinese version of the term "foreign lawyers" which could be subject to different interpretations. Amendment to the Chinese text of the Legal Practitioners Ordinance would be appropriate so that all lawyers other than Hong Kong lawyers would come under the supervision of the Ordinance. The Law Society had formally suggested this to the Legal Department for consideration. In this regard, Mr Andrew CHENG opined that might be an appropriate Chinese translation. The Chairman then asked whether an amendment would be considered, and Mr Stephen WONG said that this issue was independent of the case of the China Legal Services (Hong Kong) Ltd. He said that the Legal Department would consider the views of the Law Society but pointed out that as the term was defined in the existing Ordinance, the Legal Department would only support a change in the expression if sound policy reasons for such a change were put forward by the Law Society.

12. In response to the Chairman's enquiry, Legal Adviser advised that as a matter of legislative procedure, the Chinese text of a piece of legislation could be amended either by way of subsidiary legislation to be moved by the Attorney General, or by a Member's bill. Legal Adviser then remarked that the issue might not purely be a matter of translation as the use of the term "foreign lawyer" had been carefully considered with regard to the legislative framework in the Ordinance when the Bill was first drafted. Members noted that the Law Society was represented on the Bilingual Laws Advisory Committee which advised the government on authentic Chinese texts of all laws originally enacted in English. Mrs Miriam LAU supplemented that the Ordinance had clearly defined the term "foreign jurisdiction" as a jurisdiction other than Hong Kong and therefore it was not a problem of translation. Yet, amendment to the Ordinance to avoid possible argument was worth considering. After discussion, the Chairman suggested and members agreed that: (a) the Legal Department should provide a paper setting out its position on the matter; and (b) the Panel would decide the way forward once the paper was available. Legal Department

V. Draft Supreme Court (Amendment) Bill 1997 - habeas corpus

(LegCo Paper Nos. CB(2) 557/96-97 and CB(2) 1291/96-97)

13. Members noted the paper from the Director of Administration entitled "Draft Supreme Court (Amendment) Bill 1997 - Habeas Corpus" and the submission of the Hong Kong Bar Association (the Bar) to the Director of Administration with regard to the Supreme Court (Amendment) Bill 1997. The Chairman then invited the Administration to respond to the Bar's submission. Mr Stephen FISHER informed members that legal opinion on the submission was still awaited and he undertook to provide members with a more detailed reply once it was received. The preliminary response of the Administration to the major concerns of the Bar on the Bill was as follows: (a) proposed section 22A(10) was meant to address the Bar's concern about the "inflexibility" of proposed section 22A(5); (b) the intention of the phrase "except under the authority of an enactment or of the High Court" in proposed section 22A(11) was merely to ensure that the High Court could retain some control over a case where application under the section had been made or a writ of habeas corpus had been issued. However, if it was considered that it did more harm than good, the Administration was prepared to consider amending it; (c) as regards the Bar's objection to proposed section 22A(12), the Administration was prepared to consider whether it should be amended; (d) the Administration was prepared to consider amending proposed section 22A(5)(a) along the lines proposed by the Bar; (e) as regards proposed section 22A(9), the Administration was of the view that the inclusion of "On making such an order, the High Court may make such consequential orders as appear to it to be appropriate." would do no harm. However, the Administration was prepared to further consider this point; and (f) as regards the Bar's proposal that there should be a provision which would provide that all habeas corpus proceedings should be heard in open court unless there were compelling reasons for hold proceedings in chambers, the Administration would consider the matter and move a Committee Stage Amendment if considered necessary.Adm

14. At the invitation of the Chairman, Mr Philip DYKES reiterated the concern of the Bar that proposed section 22A removed the flexibility of the Rules of Supreme Court Order 54 which made it clear that the judge hearing an application for habeas corpus did not need to have 'the body' before him at any stage. The Bar therefore recommended the Administration give due regard to the existing procedural arrangements and practices, instead of simply reproducing literally the statutory provisions of the UK Habeas Corpus Acts 1679 and 1816. The Bar also maintained that there was merit in an extra provision in the primary legislation that all habeas corpus proceedings should be heard in open court unless there were compelling reasons for holding proceedings in chambers. Mr G J X McCOY added that neither the common law nor the English Acts of Parliament which applied in Hong Kong dealt with the issue. At present it was possible for a judge to direct that the application for habeas corpus should be dealt with entirely in chambers as a matter of general discretion in the subsidiary legislation (i.e. the Rules of Supreme Court). However, the Bar considered that it was of paramount importance to have the principle of open justice recognized in the primary legislation and to require the judge to give reason in the open court for his decision to hold the proceedings in chambers. Mr Albert HO asked and Mr DYKES responded that there was no need to spell out all the exceptional circumstances in the legislation for holding the proceedings in chambers. The Chairman then expressed concern that the discretion might be subject to abuse so that issue of political sensitivity only would be heard in chambers. Mr McCOY informed members that the common law provision was basically covered by the case law of Scott v Scott which set out very limited circumstances under which proceedings could be held in chambers. The modern trend was that all hearings of public knowledge should be heard in open court and political sensitivity would not be an appropriate reason to do otherwise. Mr DYKES further explained that the principles covered by Scott v Scott were that: (a) it was important to hold proceedings in public for the sake of openness and accountability; and (b) the principle of open justice might need to give way in special circumstances when matters of privacy were involved. The Chairman queried that the case law was not meant to be exhaustive and therefore further exceptional circumstances could be argued. To address members' concern, Mr McCOY suggested that the Administration could consider tightening up the drafting so that a set of criteria would be laid down for the court to justify holding the proceedings in chambers. In this regard, Legal Adviser drew members' attention to Article 10 of the Hong Kong Bill of Rights which stipulated: (a) that in the determination of any criminal charge against a person, or his rights and obligations in a suit of law (which could be interpreted as including habeas corpus), everyone should be entitled to a fair and public hearing; (b) that any judgement must be made in open court; and (c) the principles under which the press and the public might be excluded from all or part of a trial.

15. After preliminary discussion, the Chairman then concluded and said that members would need to study the Bill in greater detail and to consider the Administration's further response when the Bills Committee was activated. She also thanked representatives of the Bar for attending the meeting and presenting its submission to the Panel.

VI. Formation of the Court of Final Appeal

(LegCo Paper No. CB(2) 1278/96-97)

16. Members noted the Administration's papers on practical arrangements for the establishment of the Court of Final Appeal and recent appointments to the Judicial Service Commission (JSC). Mr Andrew CHENG asked and Mr Paul TANG explained that members of the JSC were recently re-appointed up till 30 June 1997 because the JSC Ordinance (Cap. 92) empowered the Governor to appoint the JSC and his power of appointment would lapse on 1 July 1997. The JSC Ordinance would be retitled as the Judicial Officers Recommendation Commission (JORC) Ordinance on 1 July 1997. The Administration had discussed with the Chief Executive (Designate) on the appointment of JORC, emphasizing the importance of continuity. It was the wish of the Administration for the current membership of the JSC to straddle 1 July 1997 but the ultimate decision rested on the Chief Executive (Designate). As regard the independence of an independent commission of the JORC, Mr TANG reminded members that the Basic Law stipulated clearly that judges of the court of the Hong Kong Special Administrative Region should be appointed by the Chief Executive on the recommendation of the JORC. At present, the Governor in theory did not necessarily have to follow the recommendation of the JSC. However, according to the Hong Kong Court of Final Appeal (CFA) Ordinance (Cap. 484), the Governor had to act in accordance with the recommendation of the JORC in relation to the appointment of permanent judges of the CFA. Mr CHENG further asked and Mr TANG confirmed that there would be a JORC (Designate) for preparation work before 1 July 1997.

17. Mr Albert HO referred to the fact that the CFA would not be established until 1 July 1997 and yet 1 March 1997 was the indicative deadline for the Privy Council to dispose appeals before 1 July 1997. He therefore expressed concern that appellant would be unable to serve his/her notice of appeal to the CFA during the interim period between 1 March 1997 and 1 July 1997. Mr Stephen FISHER drew members' attention to the transitional provision of the CFA Ordinance which provided that any appeal which had not been finally disposed of on or before 30 June 1997 should proceed in the CFA, and the CFA might give such directions as to the continuation of the prosecution of the appeal as it thought fit. It would be up to the appellants to decide whether to lodge their appeals to the Privy Council after 1 March 1997.

VII. Any other business

18. There being no other business, the meeting ended at 10:45 am.

LegCo Secretariat
7 March 1997

*. other commitments

#.. out of town

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