Provisional Legislative Council
PLC Paper No. CB(2) 1395
(These minutes have been
seen by the Administration)
Ref : CB2/BC/10/97
Bills Committee on
Legal Practitioners (Amendment) Bill 1998
Meeting on 24 February 1998 at 8:30 am in Conference Room B of the Legislative Council Building
Members present :
Hon Mrs Miriam LAU Kin-yee, JP (Chairman)
Dr Hon LEONG Che-hung, JP
Hon IP Kwok-him
Dr Hon LAW Cheung-kwok
Members absent :
Hon Kennedy WONG Ying-ho
Hon Bruce LIU Sing-kee
Hon Ambrose LAU Hon-chuen, JP
Member attending :
Hon Ronald ARCULLI, JP
Public Officers attending :
Clerk in attendance :
- Mr Peter H H WONG
- Senior Assistant Solicitor General
- Mr Jonothan ABBOTT
- Senior Assistant Law Draftsman
Staff in attendance :
- Ms Doris CHAN
- Chief Assistant Secretary (2)4
- Mr Arthur CHEUNG
- Assistant Legal Adviser 5
- Mr Stanley MA
- Senior Assistant Secretary (2)7
Election of Chairman
Nominated by Dr LEONG Che-hung and seconded by Mr IP Kwok-him, Mrs Miriam LAU was elected Chairman of the Bills Committee.
2. Mrs Miriam LAU declared interest as a practising notary public and a member of the Hong Kong Society of Notaries (HKSN).
I Meeting with the Administration
3. The Chairman welcomed representatives of the Administration. As a member of the Bills Committee on the Legal Practitioners (Amendment) Bill 1996 (the Amendment Bill 1996), she briefed the meeting that the Amendment Bill 1996 was withdrawn upon carriage of a Committee stage amendment (CSA) proposed by the former Bills Committee which required that every practising notary public on the Register of Notaries Public kept by the Registrar of the then Supreme Court (renamed as the High Court after 30 June 1997) must be a member of the HKSN. The Administration considered that such prerequisite requirement would probably infringe the right to freedom of association (including that of non-association) under Article 22 of the International Covenant on Civil and Political Rights (ICCPR) and would be open to challenge in courts.
4. Noting that the current Bill required compulsory membership of the HKSN for practising notaries (and optional for non-practising notaries), members were surprised that the Administration was now in favour of a policy which it previously did not accept. Senior Assistant Solicitor General (SASG) explained that in withdrawing the Amendment Bill 1996, the Administration had considered that if the law required notaries public to be members of the HKSN but did not give the HKSN a regulatory role in respect of its members, such compulsory membership would probably infringe the right to freedom of association under Article 22 of the ICCPR. To address this human rights concern, the Administration had included in the current Bill provisions on the regulatory role of the HKSN in relation to the practice, conduct and discipline of notaries public. With the regulatory framework laid down under the new sections 40F to 40R which were along the line of those for solicitors in the Legal Practitioners Ordinance (Cap.159), the requirement of compulsory membership of the HKSN for every practising notary public would be compatible with Article 22 of the ICCPR.
|5. Given that the Hong Kong Academy of Medicine (HKAM) was a statutory body responsible for the conduct of postgraduate and continuing medical education and the accreditation of specialist status, Dr LEONG Che-hung asked why practising medical specialists were not required to be a member of the HKAM and the justifications for compulsory membership of the HKSN for practising notary public. SASG replied that the proposed regulatory system for notaries public, which was modelled on the existing regulatory mechanisms for practising solicitors and barristers, was a self regulatory system in which the HKSN, subject to the prior approval of the Chief Justice, was empowered under the new section 73D to make rules providing for the professional practice, conduct and discipline of notaries public. In this connection, the new section 40G was proposed to provide for the establishment of a Notaries Public Disciplinary Tribunal Panel (NPDTP) from which Notaries Public Disciplinary Tribunals (NPDTs) were constituted in accordance with the rules specified in the new sections 40H and 40I. The powers of a NPDT were defined under the new section 40J. The new section 40M was proposed to provide a mechanism by which a notary public could appeal to the Court of Appeal against any order made by a NPDT. Compared with the regulatory role and functions of other professional bodies, the HKSN was entrusted with the duty to refer complaints relating to the conduct of notaries if the HKSN considered that such notaries were liable to be disciplined under the proposed legislation. He added that similar to barristers and solicitors whose standards of practice and conduct were monitored by the Hong Kong Bar Association (the Bar Association) and the Law Society of Hong Kong (the Law Society) respectively, all notaries public were liable to disciplinary actions by the NPDT referred thereto by the HKSN for any failure to maintain a satisfactory level of conduct and standards of practice. As regards the medical profession, the Hong Kong Medical Council was statutorily empowered to regulate the conduct and standards of practice of all registered medical practitioners. Dr LEONG Che-hung expressed reservations about the different policies adopted by the Administration in respect of compulsory membership of the HKAM and HKSN for medical specialists and notaries public. In response, SASG undertook to consult the Secretary for Health and Welfare and provide members with a point by point comparison between the Bill and the Hong Kong Academy of Medicine Ordinance (Cap.419) with respect to compulsory membership and regulatory role of HKSN and HKAM in the two professions concerned.
6. Referring to the right to freedom of association under Article 22 of the ICCPR, Mr IP Kwok-him requested the Administration to explain its change of policy towards mandatory membership of the HKSN for practising notaries public. SASG explained that the Amendment Bill 1996 was proposed with the aim of putting in place a practicable local appointment system for notaries public in Hong Kong before 1 July 1997. Under the 1996 Amendment Bill, the authority to appoint and discipline notaries public rested with the Chief Justice. Since section 14 of the Hong Kong Reunification Ordinance had enabled notaries public appointed prior to 1 July 1997 to carry on with all their previous powers, the Administration, after conducting a review on the system of appointing and regulating notaries public in Hong Kong, considered that the best way forward was to establish a self-regulatory system for notaries public which was modelled along the lines of those for solicitors in the Legal Practitioners Ordinance (Cap.159). He reiterated that since the Bill provided for the regulatory and disciplinary roles of the HKSN in relation to professional practice, conduct and discipline of notaries public, the requirement of compulsory membership of the HKSN for all notaries public was not incompatible with Article 22 of the ICCPR. He also stressed that the Administration ' s prime concern now was to establish as soon as possible a workable system of appointing notaries public in the HKSAR. Senior Assistant Law Draftsman (SALD) supplemented that the Amendment Bill 1996 and the Amendment Bill 1998 were modelled on two different systems. The proposed system in the former Bill resembled the one operating in England. The support of the Chief Justice, the HKSN and other related parties had been sought before it was presented to the former LegCo. During the deliberation process of the Amendment Bill 1996, the HKSN proposed mandatory membership of the HKSN to enable it to monitor the professional standards of notaries public. The Bar Association and the Law Society supported HKSN ' s proposal on the ground that public interest could be better protected. As regards the self-regulatory system under the current Bill, SALD said that it was independent of the previous model and should be considered on its own merits. He added that the current Bill was also supported in principle by the Chief Justice, the HKSN, the Law Society and the Bar Association.
7. The Chairman recalled that in opposing mandatory membership of the HKSN during the deliberations of the Amendment Bill 1996, the Administration had previously said that all notaries public, as members of the Law Society, were already subject to regulatory and disciplinary rules of the Law Society. It also pointed out that there were in general no statutory provisions for compulsory membership of notaries* organizations in the commonwealth jurisdictions other than the city of London (the Scriveners* Company in England). SASG responded that notaries public provided service on a range of notarial work which were in essence different from that of solicitors. Apart from attesting the execution and signature of documents and taking oaths and declarations in respect of documents for use in other countries, they drew up ships* protests, presented bills of exchange for payment and drew up mercantile documents, deeds, agreements, etc., for use throughout the world. Having regard to the history of the HKSN, the Administration considered that it was appropriate to appoint the HKSN to enforce the provisions in the Bill which regulated the practice, conduct and discipline of practising notaries public. As regards whether compulsory membership was required in other jurisdictions, SASG said that in proposing the current Bill, the Administration had considered the systems adopted by Singapore, South Africa, South Australia, New South Wales and Western Australia. However, as the last three jurisdictions had not incorporated a Bill of Right in their domestic legislation, the individual ' s right to freedom of association under Article 22 of ICCPR was not an issue as far as compulsory membership for notaries public in those countries was concerned.
II Clause-by-clause examination of the Bill
Section 40A - Qualifications for appointment
8. Dr LAW Cheung-kwok enquired about additional requirements prescribed by the HKSN in respect of persons applying for appointment as a notary public. Assistant Legal Adviser 5 responded that according to paragraph 5 of the LegCo Brief on the Amendment Bill 1996, it was agreed in 1979 between the HKSN and the Master of the Faculties in England that the latter would no longer grant notarial faculties to Hong Kong applicants who were not supported by the HKSN. He also pointed out that the new section 73D in the current Bill had empowered HKSN to set rules providing for the requirements to be complied with by applicants. SASG supplemented that every such rule was subject to the prior approval of the Chief Justice and the negative vetting of the LegCo in session.
Section 40F - Discipline of notaries public
9. Noting that a notary public would be liable to be disciplined for engaging in conduct, whether in pursuit of his/her notarial work or otherwise, which was likely to bring the profession of notary public into disrepute, the Chairman commented that the legal meaning of disrepute was vague and it would be unfair to the profession if the HKSN was to define it in legal terms without consulting the practising notaries public. Mr Ronald ARCULLI also expressed reservations about the effect of the new section 40(F)(2) which stipulated that a notary public who was so incapacitated by physical or mental illness as to be unable to carry out notarial work might also be disciplined. In response, SASG said that these provisions were proposed to protect the interests of clients of notaries public as well as to enhance public confidence in the profession. Mr IP Kwok-him supplemented that members of the Bills Committee on the Amendment Bill 1996 were generally in support of specifying the requirements relating to conduct of notaries public in more detail. Dr LEONG Che-hung pointed out that detailed sets of codes of practices for various medical specialists were in place and available for public inspection. He commented that a set of sufficiently detailed guidelines governing the practice standards and conduct of notaries public should be prepared by the HKSN to improve the transparency of the profession.
Section 40G - Notaries Public Disciplinary Tribunal Panel
|10. In response to Dr LEONG ' s enquiry about the need for a code of conduct for the notaries public to observe as well as to assist lay members of the NPDTP in making judgement about cases of inquiries into the conduct of notaries public, SALD said that a code of conduct for a profession was mostly presented in broad terms initially and as problem cases emerged and were judged by the responsible bodies, additional rules and procedures would be added to the code of conduct . On the conduct of notaries public, the new section 40F(1) set out a list of acts for which a notary public would be liable to be disciplined. He highlighted that some general rules must be provided in the Bill so that the HKSN could exercise its statutory power to discipline members as and when appropriate. In this connection, Mr ARCULLI requested and the Administration agreed to provide the Bills Committee with additional information on codes of practice/directions in overseas jurisdictions. In view of the importance of the HKSN ' s views on discipline of notaries public, members agreed to invite representatives of the HKSN to attend the next meeting.
Section 73D - Powers of Council of Society of Notaries to make rules
11. Members also agreed to consult the HKSN on the subject at the next meeting.
Section 73E - Indemnity rules for notaries public
12. The Chairman was concerned about the consequential increase in charge for notarial work as a result of professional indemnity insurance against loss arising from claims in respect of any description of civil liability incurred in connection with a notary public ' s practice. Noting that the existing Legal Practitioners Ordinance (Cap.159) did not require such indemnity insurance, Mr IP Kwok-him expressed his reservations about the need for such a mandatory requirement in the Bill. SASG explained that the requirement was proposed with the aim of protecting the interests of clients of notaries public in general. As regards arrangements for insurance on professional indemnity, he pointed out that the new section 73E(2) provided a number of alternatives for the HKSN to consider, including empowering the HKSN by itself or jointly with the Law Society to establish and maintain an indemnity fund.
|13. In response to Mr IP Kwok-him ' s enquiry, the Chairman requested and the Administration agreed to provide additional information on the source provisions of the proposed new sections as listed in the Comparative Table at page 251 of the Bill as well as to elaborate on the changes in any new sections which were substantially different from its source provisions.
Date of next meeting
14. Members agreed to continue their deliberations on the Bill at the next meeting to be held on 9 March 1998 at 10:45 am.
15. The meeting ended at 10:45 am.
Provisional Legislative Council Secretariat
8 April 1998