The minutes of the meetings held on 13 October and 13 November 1997 were confirmed.
2. Members agreed to hold the next meeting on 9 February 1998 at 2:30 pm.
3. As for the discussion items, Mr IP kwok-him and Mrs Elsie TU proposed the following respectively -
(Post-meeting note : the Secretary for Justice (SJ) had given notice to present on 11 February 1998 the Legal Practitioners (Amendment) Bill 1998, which sought to amend the Legal Practitioners Ordinance to provide for the appointment in Hong Kong of notaries public and for related matters.)
[PLC Paper No. CB(2)758]
5. The Director of Administration (Acting) (DA(Ag)) informed members that the Administration had completed a legal aid policy review (the review), which covered the following three areas -
6. DA(Ag) said that the Administration had committed to conduct a review once every five years to consider whether any changes should be made to the way in which the financial eligibility of applicants for legal aid services was measured. With reference to the consultative document, DA(Ag) highlighted the salient points of the findings and recommendations of the latest review completed.
7. In response to Mr Bruce LIU's enquiries, DA(Ag) said that the Working Group had recommended the new method of computing disposable income taking into account the fact that the target group of legal aid services was not restricted to those eligible for the Comprehensive Social Security Assistance (CSSA). He pointed out that legal aid services were also targetted at those who were better-off than CSSA recipients but could not afford to conduct litigation on a private basis. Therefore, the Administration considered that it was more appropriate to calculate the disposable income of legal aid applicants by using the average expenditure of the lowest 50% households as revealed in the Household Expenditure Survey (excluding rent payments).
8. DA(Ag) said that under this proposal, the coverage of the standard legal aid scheme would be about 47% to 60% of the households in Hong Kong, assuming that each household had a disposable capital of $60,000 or less. Mr Bruce LIU enquired whether the Administration would consider enlarging the coverage of the standard legal aid scheme so that more applicants could be eligible for legal aid services. In reply, DA(Ag) explained that the publicly-funded legal aid services should be only provided to those who were in genuine need of them, and those who could afford should pay their own legal costs. Given these principles, the Administration considered that the new proposal covering almost 50% to 60% households was appropriate. He pointed out that the Working Group had also taken into account the general litigation costs in legal aid cases. In addition, the Supplementary Legal Aid Scheme was in place to provide legal assistance to the "sandwich class" in certain kinds of civil proceedings. The coverage of 47% to 60% only applied to the standard legal aid scheme. The coverage would be higher if the Supplementary Legal Aid Scheme was taken into account.
9. Mr Bruce LIU referred to a recent press report about a celebrity model with a monthly income of about $100,000 applying for legal aid assistance. He questioned if there were loopholes in the current method of assessing the financial eligibility of legal aid applicants. In response, the Director of Legal Aid (Acting) (DLA(Ag)) said that the Legal Aid Department (LAD) conducted means tests for all applicants before granting legal aid to them. If any applicant was found to have given false information in order to obtain assistance, they could be prosecuted under the Legal Aid Ordinance.
10. Referring to appeals to the Court of First Instance brought by employers against judgments of the Labour Tribunal, Mr Bruce LIU enquired whether the Administration had considered giving DLA the discretion to grant legal aid, in warranted cases, to the employees concerned even though they failed in the relevant means test. He also suggested that the Administration could consider as an alternative relaxing the financial eligibility limit for employees in such appeals so that more employees would satisfy the means test. In response, DA(Ag) said that the Administration did not consider that there were sufficient justifications to treat appeals to the Court of First Instance brought by employers against judgments of the Labour Tribunal differently because -
the Administration noted that the employees involved in the majority of the appeal cases in question came within the current financial eligibility limit for the standard legal aid scheme.
11. In response to Mr Bruce LIU's enquiries about the scale set out in Annex A of the consultation paper, DA(Ag) explained that the scale was proposed with a view to rationalizing the existing contribution rates. He said that at present 90% of legally aided persons did not contribute to their legal costs. It had been argued that the present contribution rates were on the high side and that legally aided persons were required to contribute a disproportionately high amount of money towards legal costs, with the maximum contribution rate at 43%. By the proposed scale, the rate of contribution would be on a more gradual sliding scale, and legally aided persons would be required to contribute at a maximum rate of only 25%. It was estimated that implementation of the proposed scale would generate an additional annual income of about $3 million to LAD, and incur additional staff cost of $0.5 million per annum. DA(Ag) said that the scale was devised based on the principle that all aided persons should contribute towards the costs of litigation according to their financial capacity.
12. Replying to the Chairman's enquiry, DA(Ag) said that implementation of the recommendations contained in the consultation paper would incur an additional cost of $12 million a year, which included about $2 million additional staff costs.
IV Committee on Bilingual Legal System in Hong Kong
[Paper No. CB(2)835(01)]
13. The Law Draftsman (LD) informed members that a new Committee on Bilingual Legal System (the Committee) would be set up in response to the request of the former LegCo Panel on Administration of Justice and Legal Services, the Bar Association and the Law Society. The Committee would be tasked to oversee and facilitate the implementation of the policy of bilingualism in the legal system.
14. In response to Mr Bruce LIU's enquiry, LD said that the Administration was committed to developing the use of Chinese in legal proceedings and that both Chinese and English would enjoy the same status as the official languages in the legal system of the Hong Kong Special Administrative Region (HKSAR). He said that the Administration had no intention to make either one of the languages predominant having regard to the facts that Hong Kong was an international city and that Cantonese was the mother-tongue of the majority of the population. As bilingualism had been implemented for a relatively short time, LD said that the long-term policies of bilingualism had yet to be set.
|15. Mr Bruce LIU suggested inviting representatives from the tertiary institutions and also future Legislative Council Members to sit on the Committee. In response, the Director of Administration and Development (D of AD) said that representatives from the tertiary institutions had been invited to sit on the Advisory Committee on Legal Education which would continue to advise the Government on legal education and training in Hong Kong. The Administration thus considered it appropriate for the Committee to invite representatives from the tertiary institutions to sit on it only when the need arose. As regards the suggestion of including future Legislative Council Members on the Committee, LD agreed to convey the suggestion to the Committee for consideration. D of AD added that consultation with this Panel was very important to the Committee. The Administration would keep in close touch with this Panel regardless the composition of the Committee.
16. Mr IP Kwok-him enquired about the division of work between the Steering Committee on the Use of Chinese in Courts, the Advisory Committee on Legal Education and the Committee. In reply, LD explained that the first two committees mainly discussed practical issues of concern to the legal profession and tertiary institutions associated with the use of Chinese in law and in courts. At the same time, there was a need for an overall forum to address the policy issues and to ensure that any policies proposed would complement the implementation of a bilingual legal system in practice. The new committee would advise on the resources required for implementing the goal in respect of bilingualism, and co-ordinate the efforts of the Judiciary, government departments, professional bodies and the academic sector to promote bilingualism in law. In response to Mr IP's further comments, D of AD assured him that there would be no duplication between the work of the three committees and the terms of reference of the new Committee showed clearly that it covered a much wider scope and involved greater depth and complexity.
17. In response to Mr IP Kwok-him's further enquiry about the schedule of work of the Committee, D of AD said that at the moment nominations for membership of the Committee were awaited. The Committee would first set the long-term goal in respect of bilingualism and plan how to attain the goal. In view of the complexity of the work involved, D of AD said that it was difficult to estimate how long it would take to complete the work involved and to draw up a work schedule now.
18. Mr IP Kwok-him enquired if the Administration would encourage its staff to write their papers in Chinese as it was rather difficult to read Chinese translations of documents on legal matters. In reply, LD informed members that staff of the Law Drafting Division of the Department of Justice had already started to draft some clauses in Chinese first. The Department aimed to draft legislation in both Chinese and English in parallel so that no translation work was required. However, due to various constraints, such as limited manpower and tight legislative time-tables, the Department of Justice would not be able to fully attain this target in the short term. D of AD supplemented that there had been a wider use of Chinese in district courts and magistracies and that the Administration had also started drafting papers in Chinese.
V. Proposed creation of one permanent post of Deputy Principal Legal Aid Counsel in the Litigation Division of the Legal Aid Department
[Paper No. CB(2)835(02)]
19. DLA(Ag) said that there had been no increase in directorate posts of LAD since September 1989 although legal aid cases had increased substantially both in quantity and complexity over the years. Mr IP Kwok-him queried why LAD had managed not to bid for additional directorate staff in the past to cope with the large increases in caseload. In reply, DLA(Ag) explained that the Department had tried hard to handle the increased caseload but now it considered that it could no longer cope with the ever-increasing workload. He also anticipated that the upward trend for applications of legal aid would continue. The Policy and Administration Co-ordinator (PAC) of LAD supplemented although there had been no increase in directorate posts, the number of non-directorate staff of the Department had increased from some 400 to some 500. At the same time, more cases had been assigned to private legal practitioners. The percentage of assigned-out cases had increased from 60-70% in the past to 80% now.
20. Mrs Elsie TU asked for information on the number of applications from the Vietnamese boat people. DLA(Ag) agreed to provide the information after the meeting. Mr IP Kwok-him also requested the Administration to provide a breakdown of the number of applications by the types of the cases involved. DLA(Ag) agreed.
21. Mr Bruce LIU asked for the reasons for the substantial increases in caseload. In response, PAC said that it was mainly due to the large increase in applications for divorces. Legal aid applications arising from divorce cases had increased by 17% subsequent to the amendment made to the Matrimonial Causes Ordinance last year. In addition, more people had been aware of and applied for the services such as for cases concerning employees compensation and wages claim. As regards service commitments, PAC said that LAD had made a performance pledge in November 1997 which stipulated that 80% of applications for civil legal aid should be processed within three months after their submission. Based on the latest information, 50% of the applications received had been processed within the same day of their submission. Moreover, applicants were now no longer required to do the means test and the merit test separately in the Social Welfare Department and LAD because both tests were now conducted in LAD on the same day. If applicants could make available the required information when they submitted applications, they could be informed of the results within the same day.
22. Members had no further comments / questions on this proposal.
VI. Creation of posts in the Department of Justice
Creation of a Deputy Principal Government Counsel (DPGC) post in the China Law Unit, Legal Policy Division
[Paper No. CB(2)835(03)]
23. D of AD informed members that the present supernumerary DPGC post in the Legal Policy Division would lapse on 1 April 1998 and therefore a permanent DPGC post was proposed with effect from 1 April 1998 to provide continued support in the area of China Law. The Deputy Solicitor General (DSG) pointed out that the workload of the China Law Unit had increased substantially in the past few years. A total of 200 written advice had been provided on China law in 1997. The functions of the Unit included providing advice on the law in the Mainland and promoting knowledge of China law within the Department, and promoting mutual understanding between Hong Kong and the Mainland about the legal systems.
24. Mr IP kwok-him enquired whether the Administration anticipated that the large increase in the number of written advice sought in the run-up to 1997 would continue after the reunification. In reply, DSG said that it had continued to receive a large number of requests for advice from various government bureaux and departments regarding a wide spectrum of topics in respect of China law. In addition, the nature of the advice sought had become increasingly complicated and detailed.
25. Mr IP Kwok-him commented that the need to receive high-ranking visitors from the Mainland could not justify the need of converting the supernumerary DPGC post to a permanent one. In response, DSG explained that after the reunification, the number of visits to the Mainland and incoming legal delegations from the Mainland, as well as the requests for advice on China Law, was expected to increase. All the relevant support was rendered by a team of Government Counsel in the China Law Unit. Therefore, additional support at directorate level was necessary to ensure the quality of the services provided.
26. D of AD said that sufficient provision had been included in the 1998-99 draft Estimates to meet the cost of this proposal.
27. The Panel expressed support for the proposal.
Creation of a Deputy Principal Government Counsel post in the International Law Division
[Paper No. CB(2)835(04)]
28. The Law Officer (International Law) (LO(IL)) explained the existing DPGC post in the Division had been supernumerary for four years and the proposal under discussion sought to convert the post into a permanent one. He pointed out that there was a great deal of work to be done in the area of bilateral agreements arising from the following -
In response to Mrs Elsie TU, LO(IL) said that the creation of the permanent DPGC post would also help in handling the transfer of sentenced prisoners. At the Chairman's enquiry, he explained what had caused the slow progress of the transfer.
- the HKSAR Government had been authorized by the Chinese Foreign Minister to negotiate up to 40 specific bilateral agreements;
- there were additional topics other than those mentioned in the paper which needed to be covered by bilateral agreements. For example, the subject of reciprocal enforcement of judgments;
- the substantial body of treaty law generated from time to time the need for further advice and interpretations as well as amendments which had to be made to those agreements for which mature advice and expertise were required; and
- there were 70 countries with which HKSAR had either reached bilateral agreements, or had been authorized to negotiate agreements, or was in communication in order to ascertain whether agreements were required.
29. Referring to para. 3(b) of the Administration's paper, Mr IP Kwok-him asked for details of the work involved in giving advice on multilateral treaties that applied to the Government of the HKSAR. In reply, LO(IL) referred to Article 153 of the Basic Law which enshrined that the views of the HKSAR Government had to be sought before PRC applied to HKSAR any new international agreements to which PRC was a party. He explained that where there was the prospect of a new international agreement being applied to HKSAR, it was necessary for legal advice to be given about how and to what extent it was possible to give effect to that new agreement as the law stood, and to what extent it might be necessary to introduce local legislation in order to implement the new agreement. LO(IL) also anticipated that implementation of Chapter VII of the Basic Law entitled "External Affairs" would create additional demands for international legal advice to be given by the Division.
30. In response to Mr IP Kwok-him's further enquiry, LO(IL) said that it was difficult to estimate now the increases in workload in the area of multilateral agreements to be applied to HKSAR.
31. Members had no further comments / queries on this proposal.
Creation of a Deputy Principal Government Counsel post in Bilingual Drafting Unit, Law Drafting Division
[Paper No. CB(2)835(05)]
32. LD said that there had been a drastic increase in workload of the Law Drafting Division in the past few years. However, there was only limited increase in manpower. In fact, the Division had tried to cope with the workload by allocating law drafting work to staff who were originally responsible for translation of law. As there had also been increasing demands for the Division to issue bilingual drafts at more or less the same time or even simultaneously, there was an urgent need for additional manpower support.
33. Mr IP Kwok-him agreed that there was a need to increase manpower for the Division in order to cope with the heavy workload. He asked whether the Administration would consider creating the post on a supernumerary basis for two years and then to further decide on the need for converting the post into a permanent one based on the actual level of workload. In reply, LD said that the Department had decided on a permanent DPGC post having regard to the following -
In response to Mrs Elsie TU's enquiry, LD confirmed that if the proposal was endorsed, the post would be filled by promotion within the Department.
- the Division had a long-term need for the input of a DPGC in implementing the policy of bilingual legislation;
- the volume and complexity of work faced by the Division would continue to increase with implementation of the Adaptation of Laws programme and formation of the Legislative Council;
- law drafting was of a very specialized nature and it would be difficult to attract/retain staff if the relevant posts were not permanent ones; and
- the Division's existing staffing position after disbanding on 1 July 1997 a team which had been responsible for law adaptation and localization.
34. At Mr Bruce LIU's enquiry, LD said that a paper was being prepared to seek members' views regarding a review to be conducted by the Division on the existing legislation to see whether any legislative amendments were necessary to improve the law.
35. Members had no further comments/questions on this proposal.
36. The meeting ended at 4:30 pm.
Provisional Legislative Council Secretariat
4 March 1998