Provisional Legislative Council

PLC Paper No. CB(2) 1385
[These minutes have been
seen by the Administration]


Provisional Legislative Council
Panel on Administration of Justice and Legal Services

Minutes of meeting held on Monday, 9 March 1998 at 4:30 pm in Conference Room B of the Legislative Council Building

Members present :

Hon Ambrose LAU Hon-chuen, JP (Chairman)
Hon Kennedy WONG Ying-ho (Deputy Chairman)
Hon Mrs Elsie TU, GBM
Hon TSANG Yok-sing
Hon Bruce LIU Sing-lee
Hon Mrs Miriam LAU Kin-yee, JP

Members absent :

Hon WONG Siu-yee
Hon David CHU Yu-lin
Hon Ronald ARCULLI, JP
Hon YEUNG Yiu-chung
Hon IP Kwok-him

Public officers attending :

Item III

Mr Patrick C K HO
Principal Assistant Secretary for Constitutional Affairs

Mr James O'NEIL
Principal Government Counsel (Elections)

Clerk in attendance :

Ms Doris CHAN
Chief Assistant Secretary (2) 4

Staff in attendance :

Mr Jimmy MA
Legal Adviser

Ms Joanne MAK
Senior Assistant Secretary (2) 4

I. Confirmation of minutes of meeting held on 13 January 1998

(PLC Paper No. CB(2) 1138)

The minutes of the meeting held on 13 January 1998 were confirmed.

II. Draft report of the Panel for submission to the Provisional Legislative Council

[Paper No. CB(2)1137(01)]

At Mrs Elsie TU ' s suggestion, the Chairman agreed that the Panel should request the Judiciary to provide the up-to-date position in respect of the relocation of the Family Court. The information sought would be added to paragraph 4 of the draft report. (Post-meeting note : the reply from the Judiciary Administrator was received on 17 March 1998 and circulated to members under PLC Paper No. CB(2) 1247 dated 18 March 1998. ) Clerk

2.Members agreed to add the following to the end of paragraph 6 of the draft report - Clerk

" Members recommended that the future Panel on Administration of Justice and Legal Services of the first Legislative Council should follow up the Legal Aid Policy Review. "

3.Regarding paragraph 7 on progress of localisation in the Department of Justice, Mr Kennedy WONG said that the Administration seemed to have made the following two points when the subject was discussed at the last meeting -

  1. The three localisation schemes were coming to an end with significant progress achieved; and

  2. The Department of Justice had confirmed that open recruitment was conducted for the directorate counsel posts of the Department.

Mr Kennedy WONG suggested that the minutes of the last meeting be prepared as early as possible. If the minutes showed that the above two points had been made by the Administration, they should be added to the report using the same wordings as the minutes. Members agreed. Clerk

4. At Mr Bruce LIU ' s suggestion, the Chairman agreed to add " the Panel had also discussed the handling of election petitions " under " Other matters discussed " in the report. Clerk

III. Handling of Election Petitions

[Paper No. CB(2)1137(02)]

5.The Principal Assistant Secretary (Constitutional Affairs) (PAS(CA)) said that the subject of election petitions had been discussed earlier by the Subcommittee on subsidiary legislation relating to Legislative Council election (the Subcommittee). He welcomed members to raise any questions on this subject.

6.With reference to paragraph 5 of the Administration ' s paper, the Chairman enquired what constituted " sufficient grounds " which warranted an early disposal of an election petition case as applied by either party to the case. In response, PAS(CA) said that the paper had been cleared by the Judiciary and he confirmed that a petitioner could apply for an early trial of a petition. The Principal Government Counsel (Elections) (PGC(E)) explained that election petitions would be dealt with as part of the ordinary business of the Court. There was a mechanism in place which allowed for an expedited procedure where the situations warranted. In addition, the Court could impose a tight schedule for submissions on parties as part of its case management regime. The Court therefore had the power to expedite election petition hearings and the necessary mechanisms to do so were already available.

7.In response to Mr Bruce LIU ' s enquiries, PAS(CA) said that it was true that how fast a petition could be handled depended to some extent on how quickly the relevant documents could be submitted by the petitioner or respondent. He said that based on past experience, the time involved in handling a simple election petition case was between two to three months after the lodgement of the petition. However, he noted that there were some petition cases which had taken a longer time.

8.Mrs Miriam LAU recalled that there was once an election petition in respect of a Legislative Council (LegCo) election lodged by an unsuccessful candidate in that election. The Court had taken such a long time to handle the petition that, by the time the case was concluded, it was already the end of the term of office of the LegCo for which the election had been held. Mrs LAU considered that the Court should take into account the fact that petition cases exerted considerable pressure on both the respondents and the petitioners, and that a public interest was actually involved in petition cases. She took the view that the Court should impose a schedule of, say, six months, for election petitions in respect of LegCo elections in order to ensure that the relevant cases would be handled expeditiously and parties concerned would submit the required documents on time. She also suggested that the Judiciary should separate election petitions from other civil cases for listing in order to expedite the hearings of petition cases.

9.In response, PAS(CA) reiterated that based on past experience, it only took generally two to three months to complete the trial of an election petition. Therefore, he believed that there must be special reasons for a protracted case. He pointed out that the Administration had already consulted the Judiciary which had advised that, in handling election petitions, the most important concern, inter alia, was to ensure the just disposal of the cases. He said that the Judiciary understood well the implications of an election petition in respect of a LegCo election. The Judiciary had also noted Members’ concern about the need for expeditious disposal of election petitions as expressed at one of the Subcommittee meetings. PAS(CA) explained that, however, it was difficult to impose any rigid schedule on the operation of the Court which had its well-established practice and procedure. He said that the Administration on balance had accepted the Judiciary ' s position taking into account of the following -

  1. the decisions of the Judiciary should be respected;

  2. past records had shown that election petitions could be handled in a relatively short time; and

  3. individual cases involving complicated issues would be further considered.

10.As regards Mrs LAU ' s suggestion of separating election petitions from other civil cases for listing, PAS(CA) replied that the Judiciary had been consulted and it considered that such an arrangement would be inappropriate.

11.Mr Bruce LIU said that the usual cause for prolonged trial of petitions was failure of the parties concerned to submit the required documents expeditiously. He considered that for the sake of public interest, the Judiciary should expedite the hearings of petition cases as far as possible if the relevant documents were made available by the parties concerned. In addition, he opined that the Administration should also take measures to prevent people from postponing submission of the required documents intentionally in a bid to delay the trial of the case.

12.In response, PGC(E) said that the Court had the power to impose a tight schedule as part of its case management with tight deadlines for submission of the required documents in any particular case. He said that these would help to bring the case to a conclusion faster.

Mr Bruce LIU enquired about the standard of proof applied by the judge in the trial of election petitions. In response, PGC(E) noted that election petitions could concern matters which were of a civil or criminal nature. The Court would apply a sliding scale from that of " balance of probabilities " applicable in civil cases to ' beyond reasonable doubt ' applicable in criminal cases. The Court would apply a higher standard of proof taking into account of the gravity of the circumstances of the case and the seriousness of the consequences.

13.Mr Bruce LIU did not support the proposal made by a member of the Subcommittee regarding the setting up a special court for handling election petitions for the following reasons -

  1. the practice and procedure of the High Court would in general apply to an election petition; and

  2. the number of election petition cases was small.

14.Regarding the government ' s position on this matter, PAS(CA) said that the government maintained the view that it was unnecessary and inappropriate to set up a special court for election petitions.

15.In respect of an uncontested election where there would be no elector involved, Mr Kennedy WONG enquired whether the government could act as a petitioner and lodge an election petition against the successful candidate if it was found after the election that he had committed corrupt / illegal practice during the election. In reply, PGC(E) said that the definitions of those who could lodge an election petition had been set out in section 62 of the Legislative Council Ordinance, which did not provide for the government to be a petitioner. He said that in the circumstances as described by Mr WONG, any charge against a candidate of committing corrupt / illegal offence at an election would be inquired into by the relevant enforcement agencies first (such as the Independent Commission Against Corruption). If there was adequate evidence, the government would call for the prosecution against the candidate. In case the person was convicted of a corrupt / legal offence, he would be disqualified in accordance with the relevant procedure in the legislation.

16.Mrs Miriam LAU asked what action the Administration would take if it had made mistakes in screening the eligibility criteria of a candidate and that the mistakes were not discovered until after that candidate was declared duly elected. In reply, PGC(E) said that if the election had yet to take place, it was possible to apply the election procedures to disqualify the candidate. If the election had taken place and the candidate was elected, he could be disqualified in accordance with the election petition procedure. If the ineligibility of the elected candidate was discovered after the period for lodging election petitions, he could be disqualified by applying the disqualification provisions applicable to Members under the Basic Law.

17.Mr Bruce LIU enquired whether the Administration would consider extending legal aid to cover election petitions by applying the existing eligibility criteria to applicants of these cases. In reply, PAS(CA) said that the Administration maintained the view that there were insufficient justifications to extend legal aid specially to cover election petition cases as it could be argued that many other cases might also involve a public interest.

The meeting ended at 5:20 pm.

Provisional Legislative Council Secretariat
3 April 1998