Legislative Council

LC Paper No. CB(2)1829/98-99
(The minutes have been seen
by the Administration)

Ref : CB2/BC/19/98

Bills Committee on
Interpretation and General Clauses (Amendment) Bill 1999

Minutes of Meeting
held on Wednesday, 31 March 1999 at 8:30 am
in Conference Room B of the Legislative Council Building

Members Present :

Hon Albert HO Chun-yan (Chairman)
Hon Martin LEE Chu-ming, SC, JP
Hon Ronald ARCULLI, JP
Hon HUI Cheung-ching
Hon Emily LAU Wai-hing, JP

Members absent :

Hon Margaret NG
Hon Jasper TSANG Yok-sing, JP

Public Officers attending :

Mr Michael SCOTT
Deputy Principal Government Counsel (Legal Policy)

Mr Geoffrey FOX
Deputy Principal Government Counsel (Law Drafting)

Mr Sunny CHAN
Senior Government Counsel (Law Drafting)

Mr Thomas LEUNG
Senior Government Counsel (Law Reform Commission)

Clerk in attendance :

Mrs Sharon TONG
Chief Assistant Secretary (2)1

Staff in attendance :

Mr KAU Kin-wah
Assistant Legal Adviser 6

Mr Colin CHUI
Senior Assistant Secretary (2)5

I. Election of Chairman

Mr Albert HO was elected Chairman of the Bills Committee.

II. Meeting with the AdministrationBriefing by the Administration

2. Deputy Principal Government Counsel (Legal Policy) (DPGC(LP)) said that the Bill sought to implement the recommendations of the Law Reform Commission (LRC) made in its Report that the law regarding the use of extrinsic materials as an aid to statutory interpretation be codified and clarified.

3. DPGC(LP) pointed out that before the judgment in Pepper v Hart (1992)3 WLR 1032 a restrictive approach to such use of extrinsic materials was largely applied in Hong Kong whereby only the text of the Ordinances was used for statutory interpretation. Problems arose where there was uncertainty or ambiguity in the text of the Ordinances. There had been much debates by the judiciary, academics and legal practitioners on such use of extrinsic materials. The general rule was that where the text of an Ordinance was unclear, reliable material which pointed to a sensible meaning of the text might be used. Such use of extrinsic materials was, however, subject to a proviso that only words of the statutory provision bearing the object of the provision as revealed by the material could be interpreted in such a way. There had been many departures from this rule by individual judges who referred to extrinsic materials, e.g. Hansard, in the statutory interpretation of an Ordinance. To clear up the inconsistencies, a number of jurisdictions had recommended codification of the use of extrinsic materials especially legislative history which meant material created preparatory to, and in the course of, the passage of an Ordinance. In Australia there was a move in 1981 to codify the rules on statutory interpretation and clarify what material the court could refer to in determining the meaning of a statutory provision. It did not pre-empt the normal rule that the words of the statute must be looked at in the first instance. Only when there was ambiguity or uncertainty in the literal meaning of the words then extrinsic materials could be used as an aid in the construction of the relevant provision. If a meaning could not be gained from the extrinsic materials, the court would very likely have to hold that it could not reach a sensible meaning from the words in question.

4. DPGC(LP) said that while Pepper v Hart was seen as a watershed case on the admissibility of parliamentary material, the case itself did not establish what other material the court could use. In the case the court held that if the minister's second reading speech was clear, the court should follow it. Such ruling had been criticised as a surrender of the court's constitutional function of interpreting legislation. The Bill sought to ensure that the court could refer to second reading speeches as well as other extrinsic materials in determining the true object of the statute concerned.

5. DPGC(LP) added that because of the uncertainty of the admissibility of extrinsic materials which remained after the judgment in Pepper v Hart, it was considered that the efficiency of court proceedings would be improved if the litigants were clear about what material could be referred to in court. By having legislative history listed as admissible evidence, it would save enormous amount of court time as well as the litigation costs.

6. DPGC(LP) said that the Bill had a proviso stipulating that the Bill itself did not replace the common law applicable to statutory interpretation, in particular the rule of law that people ought to be able to rely on the ordinary meaning of a statutory provision in construing the meaning of that provision.

7. In reply to Mr Martin LEE's question of a comparison of the Bill with similar legislation outside Hong Kong, Deputy Principal Government Counsel (Law Drafting) (DPGC(LD)) said that the provisions of the Bill were modelled on section 15AB(1)(b) and (2) of the Australian Acts Interpretation Act 1901. Proposed section 19A(1) of the Bill followed section 15AB(1)(b) of the Australian legislation. LRC did not make any recommendation as to whether section 15AB(1)(a) of the Australian legislation, which allowed extrinsic materials to be used to confirm the meaning of a statutory provision, should be adopted in Hong Kong. None of the consultees, namely the Bar Association, the Law Society, the Judiciary, the Universities, the LegCo Panel on Administration of Justice and Legal Services and those who expressed views on the LRC's Consultation Paper, supported its inclusion. There was concern that it would lead to an escalation of legal costs. One consultee observed that it would also make it difficult for judges "to limit the introduction of these materials and even more difficult to discipline parties by making adverse awards of costs". The Commission accepted these submissions and therefore did not recommend that extrinsic materials be used to confirm the meaning of a statutory provision (paragraph 11.60 of the LRC Report).

Increase in court time and legal costs

8. Mr Martin LEE remarked that the Bill would have the effect of increasing rather than reducing unnecessary litigation and costs over the interpretation of an Ordinance. The judgment of Pepper v Hart only allowed the use of ministers' second reading speeches as extrinsic material in statutory interpretation. The Bill sought to broaden the scope of extrinsic materials to other materials as listed therein. This would result in an increase in court time and legal costs.

9. Mr Martin LEE asked whether the enactment of the Bill would place Hong Kong in the position of a fore-runner in the area of statutory interpretation. DPGC(LP) said that apart from Australia, Singapore had also introduced legislation on extrinsic aids to statutory interpretation. Mr LEE said that the ruling party of Singapore was in control of the Singapore Parliament. Almost all the Singapore Parliamentarians belonged to the ruling party. Hong Kong was exactly the opposite in this respect as there was no Government representative in the legislature.

10. Miss Emily LAU shared Mr Martin LEE's view that admissibility of these extrinsic aids would result in the increase in court time and legal costs. DPGC(LP) responded that the court in some jurisdictions such as UK had issued practice directions which imposed heavy penalty on lawyers who attempted to flood the court with unnecessary materials. There was no question that the costs would outweigh the requirement to do justice between parties in a particular case. Mr Martin LEE was concerned that the admissibility of extrinsic aids might enable one party to unearth large amount of relevant material and persuade the court to use these relevant material. It therefore might not be fair to the other party acting in person. DPGC(LP) pointed out that there was a practice direction requiring that any extrinsic material which was to be used by one party had to be notified to the other party. The Chairman requested and DPGC (LP) agreed to provide a list of the practice directions in relation to the application of Pepper v Hart. Adm

Legislative intent of a statute

11. Mr Martin LEE said that before the case of Pepper v Hart, the words of a piece of legislation were to be read in their fullest context with a view to interpreting the purpose of the legislation. The judgment of Pepper v Hart allowed second reading speech of the minister concerned to be admissible extrinsic material in determining the legislative intent which could be reflected in the speech under the British parliamentary system. But the application of the case in Hong Kong would have difficulty as the intention of the legislature was not necessarily that of the Government in enacting a bill. The proposed use of the LegCo committee reports as extrinsic material was inappropriate as the Bills Committees reports might only reflect views of the committees concerned.

12. Miss Emily LAU opined that Hansard of the second reading debates of the bills concerned might be admissible in court in the interpretation of the legislative intent of the statutes concerned. She had reservation about the use of other relevant documents or reports created prior to the passage of a bill as extrinsic materials in interpreting the legislative intent.

13. The Chairman was concerned that the need to take into account large amount of extrinsic materials in statutory interpretation might render the legislation concerned less intelligible to the public.

14. The Chairman and Mr Martin LEE requested the Administration to provide a summary of relevant case(s) in Hong Kong where the principles of Pepper v Hart had been applied and how they had affected the decision of the court. DPGC(LP) responded that there were two Court of Appeal cases in which Pepper v Hart was held irrelevant because there was no ambiguity or obscurity in the statutes concerned. As such, the text of the statutes alone could be relied on in statutory interpretation. He also referred members to the Canadian case on the use of non-parliamentary aids set out in paragraphs 7.82 to 7.83 of the LRC's Report. In the case the Canadian court had gone beyond Pepper v Hart in statutory interpretation. The court's judgment reflected what the Administration attempted to clarify with the Bill. Mr Martin LEE commented that the use of extrinsic aids allowed in the case was limited vis-a-vis that by the Bill. DPGC(LP) pointed out that the case allowed use of legislative history in statutory interpretation. DPGC(LD) added that legislative history covered any material created preparatory to, and in the course of, the passage of an Ordinance. DPGC(LP) said that while neither the material set out in the Canadian case nor that in the Bill was an exhaustive list of the legislative history of a statute, the key in the use of extrinsic aids was whether the material was relevant and reliable in interpreting the meaning of a statutory provision. Adm

Proposed section 19A(2)(c)

15. In reply to the Chairman's question, DPGC(LD) confirmed that proposed section 19A(2)(c), which allowed any relevant report of a body similar to LRC outside Hong Kong where the provision of an Ordinance was modelled on legislation from the place implementing any recommendation of the report to be admissible in court, was the only proposed amendment which was not based on the LRC's recommendations. As any relevant report of a body in Hong Kong, such as LRC, on which a provision of an Ordinance was based was admissible extrinsic aid under proposed section 19A(2)(b), there was no difference in principle to allow relevant report of a foreign body to be admissible in court as suggested under proposed section 19A(2)(c).

Proposed section 19A(2)(g)

16. Mr Ronald ARCULLI expressed concern about allowing any relevant report of a committee of LegCo made before the enactment of the provision to be extrinsic aids (proposed section 19A(2)(g)). There was a clear difference between the local legislature and the parliamentary systems of the jurisdictions which had introduced similar legislation on statutory interpretation. Unlike other parliamentary systems with a government majority, the SAR Government did not have any member in the legislature nor in the committees. The decisions of a LegCo committee therefore could not reflect the intent of the Government who introduced the bill. Moverover, these decisions were not binding on Members. DPGC(LD) responded that the committee report would only be used at the discretion of the judge. It was not a mandatory requirement to use this material in statutory interpretation. Miss Emily LAU indicated support for the thrust of the Bill. She opined that the material which the court would refer to was the arguments and reasoning for enactment of the provisions. It was irrelevant whether the Government had a majority or was represented in the legislature. Mr ARCULLI said that under the present structure of the legislature and its committee system, the legislative intent of a statutory provision might not be reflected in the deliberations and decisions of a LegCo committee.

Proposed section 19A(2)(i)

17. Regarding the use of any relevant material in the Hansard of LegCo in statutory interpretation under proposed section 19A(2)(i), Mr HUI Cheung-ching asked whether there might be problems in using this material in respect of a statutory provision which was barely passed in Council. DPGC(LP) responded that bills passed in Council were legitimised by the majority vote. The court was entitled to refer to the relevant material in Hansard to see if there was thread to other materials on the meaning of the provision which was barely passed in Council. Should the material in Hansard contain reference to the relevant Bills Committee report in the deliberation of the provision, the court might refer to the report to determine the object of the provision. The proposal merely gave the court and litigants a fair chance at getting an informed interpretation of a statutory provision rather than one based on mere speculation.

Proposed section 19A(5)

18. In reply to Mr HUI Cheung-ching's question, DPGC(LD) said that proposed section 19A(5) of the Bill provided that the weight to be attached to extrinsic materials was not to be more than was appropriate in the circumstances. For instance, there were two possible meanings (A and B) of a statutory provision. If the relevant ministerial second reading speech tended to indicate meaning A but not positively exclude meaning B, the court would give some but not a conclusive weight to the material. It was a matter for the judge to decide what weight was to be given to the material in the circumstances of the case in which the material was used. This was the legal principle in relation to admissibility of any evidence. The court would take the legal principle into account even without the proposed section. In reply to the Chairman's question on the legal authority of this principle, DPGC(LD) referred members to paragraph 11.83 of the LRC Report, which set out the grounds for LRC's adoption of the proposed section. DPGC(LP) added that judicial discretion required the court to exercise discretion in accordance with the law and the circumstances of the case. Failure to do so would render judgment of the case concerned subject to challenge.

19. Miss Emily LAU requested and DPGC(LD) agreed to provide a copy of the working paper of the Administration in respect of the provisions of the Bill cross-referenced to the relevant paragraphs of the LRC Report. Adm

20. Members noted from the Clerk that the Bills Committees reports which were submitted to the committee chairmen/members concerned for approval were normally prepared in one language. The approved report would then be translated to the other language for distribution to members for information. Miss Emily LAU remarked that the committee concerned would have to approve both the Chinese and English versions of a committee report if the Bill was passed. In this connection, Mr Martin LEE commented that in view of the bilingual nature of local legislation, the LRC Report should have been translated into Chinese as the Report might be used as an extrinsic aid.

III. Date of next meeting

21. Members agreed to invite representatives from the Bar Association, the Law Society, Law Schools of the University of Hong Kong and City University of Hong Kong to give their views on the Bill at the next meeting to be held at 9:00 am on 8 May 1999. They would be requested to provide written submissions to the Bills Committee by end April 1999 to facilitate members' consideration of their views before the meeting.

22. The meeting ended at 9:45 am.

Legislative Council Secretariat
4 May 1999