Legislative Council

LC Paper No. LS 59/98-99

Paper for the House Committee Meeting
of the Legislative Council
on 13 November 1998

Legal Service Division Report on
Adaptation of Laws (No. 4) Bill 1998


Object of the Bill

To adapt certain Ordinances and their subsidiary legislation to bring them into conformity with the Basic Law and with the status of Hong Kong as a Special Administrative Region of the People's Republic of China.

LegCo Brief Reference

2. LP 5039/19/4C II of October 1998 from Department of Justice.

Date of First Reading

3. 11 November 1998.

Comments

4. A summary of the proposed amendments in the Bill and, the Ordinances and subsidiary legislation affected by those amendments are at the Annex. Members may note that the Ordinances and subsidiary legislation set out at the Annex are related to legal practitioners either in public or private sector.

5. If enacted, the Bill, other than s. 9(b) of Schedule 2, will take retrospective effect from 1 July 1997 to ensure that there is consistency in the interpretation of all laws on and after 1 July 1997. The retrospective effect will not apply to provisions involving criminal offences or penalties. S. 9(b) of Schedule 2 relates to the amendment to the Legal Practitioners Ordinance (Cap. 159) empowering the Council of the Law Society to exercise powers in relation to its members under ss. 10D and 11 of the Mental Health Ordinance (Cap. 136). S. 9(b) of Schedule 2 will come into operation on the day appointed for the commencement of ss. 9 (in so far as it relates to the addition of s. 10D) and 10 of the Mental Health (Amendment) Ordinance 1997 (81 of 1997).

Public Consultation

6. There has not been any public consultation on the Bill.

Consultation with the LegCo Panel

7. No consultation with any LegCo Panel on the details of the Bill has been carried out.

Conclusion

8. We have raised certain queries with the Administration about the Bill to which the Administration has responded by a letter dated 10 November 1998. The response is being studied by the Legal Service Division. In the meantime, Members may wish to decide whether a Bills Committee be formed to study the details of the Bill.


Prepared by

Lam Ping-man, Stephen
Assistant Legal Adviser
Legislative Council Secretariat
11 November 1998

Bill/Adapt-4


Annex

Adaptation of Laws (No. 4) Bill 1998
Summary of the proposed amendments

Legal Officers Ordinance (Cap. 87)

Original Terms

Proposed Amendments

Colony

(s. 2 and s. 4)

Hong Kong

(s. 2 and s. 4)

of the Colony

(s. 10)

Reapled.

(s. 10)

Governor

(s. 2, s. 7 and s. 11)

Chief Executive/

Chief Executive in Council

(s. 2, s. 7 and s. 11)

Government of Hong Kong

(s. 2)

the Government

(s. 2)

Matters in which legal officers may act, among other things : -

Any matter which relates to the official acts or omissions of :

(a) the naval, military or air authorities; or

(b) the Trade Commissioner for the United Kingdom or any territory forming part of the Commonwealth.

(s. 4(1))

Paragraph (a) is amended to read "the naval, military or air authorities of China in Hong Kong".

Paragraph (b) is repealed.

(s. 4(1))

The Attorney General shall be entitled in the courts of the Colony to the same rights as are enjoyed in England by the Attorney General of England.

(s. 5)

All rights which were enjoyed by the then Attorney General immediately before 1 July 1997 in the courts of Hong Kong, except for those that are inconsistent with the Basic Law, shall on and after that date be exercisable by the Secretary for Justice.

(new s. 5)

The Attorney General shall exercise and discharge so far as regards any proceedings over which the courts of the Colony have jurisdiction by or by virtue of the Matrimonial Causes Ordinance (Cap. 179), the rights and duties which in England are customarily exercised and discharged by the Queens'Proctor.

(s. 6)

All rights and duties which were exercisable or dischargeable by the then Attorney General immediately before 1 July 1997 so far as regards any proceedings over which the courts of Hong Kong had jurisdiction by or by virtue of the Matrimonial Causes Ordinance (Cap. 179), except for those that are inconsistent with the Basic Law, shall on and after that date be exercisable or dischargeable by the Secretary for Justice.

(new s. 6)

Attorney General's Chambers

Attorney General

Law Officer

Crown Prosecutor

Crown Solicitor

Law Draftsman

Solicitor General

Principal Crown Counsel

Deputy Crown Prosecutor

Deputy Crown Solicitor

Deputy Law Draftsman

Deputy Solicitor General

Deputy Principal Crown Counsel

Senior Assistant Crown Prosecutor

Senior Assistant Crown Solicitor

Senior Assistant Law Draftsman

Senior Assistant Solicitor General

Assistant Principal Crown Counsel

Assistant Crown Prosecutor

Assistant Crown Solicitor

Assistant Law Draftsman

Assistant Solicitor General

Senior Crown Counsel

Crown Counsel

Assistant Crown Counsel

(Schedule)

Department of Justice

Secretary for Justice

Law Officer

Director of Public Prosecutions

Law Officer (Civil Law)

Law Draftsman

Solicitor General

Principal Government Counsel

Deputy Director of Public Prosecutions

Deputy Law Officer (Civil Law)

Deputy Law Draftsman

Deputy Solicitor General

Deputy Principal Government Counsel

Senior Assistant Director of Public Prosecutions

Senior Assistant Law Officer (Civil Law)

Senior Assistant Law Draftsman

Senior Assistant Solicitor General

Assistant Principal Government Counsel

Assistant Director of Public Prosecutions

Assistant Law Officer (Civil Law)

Assistant Law Draftsman

Assistant Solicitor General

Senior Government Counsel

Government Counsel

Assistant Government Counsel

(new Schedule)


(s. 10)


(s. 10)




Legal Practitioners Ordinance (Cap. 159)

Original Terms

Proposed Amendments

Nil

In this Ordinance, a reference to the Department of Justice shall, in relation to any period of time before 1 July 1997, be deemed to be a reference to the then Legal Department.

(new s. 2(1A))

Subject to the provisions of this Ordinance, the Court or any judge thereof may exercise the same jurisdiction in respect of any person admitted to practise as a solicitor therein as may be exercised by the High Court, the Crown Court and the Court of Appeal respectively, or any division or judge thereof, in England, by virtue of section 50(2) of the Solicitors Act 1974 (1974 c. 47 U.K.), in respect of any solicitor or attorney admitted to practise therein.

(s. 3(3))

Repealed.

Governor

(s. 74A)

Chief Executive

(s. 74A)

Nothing in this Ordinance shall, among other things, prejudice or affect any rights or privileges of any member of Her Majesty's Overseas Judiciary, etc.

(s. 75)

The reference to "any member of Her Majesty's Overseas Judiciary" is repealed.

(s. 75)


(The heading to Part IIIA)


(The heading to Part IIIA)


(s. 72B)


(s. 72B)



Legal Services Legislation (Miscellaneous Amendments) Ordinance (94 of 1997)

Original Terms

Proposed Amendments

Governor

(s. 13)

Chief Executive

(s. 13)

Governor's opinion

(s. 13)

opinion of the Chief Executive

(s. 13)

Supreme Court

(s. 10(2)(2G) of the Legal Practitioners Ordinance in item 17 in Schedule 1)

High Court

(s. 10 (2)(2G) of the Legal Practitioners Ordinance in item 17 in Schedule 1)

The powers conferred by section 98 of the Mental Health Act 1983 (1983 c. 20 U.K.) (Emergency powers) or section 99 of that Act (Appointment of a receiver) are exercisable by the Council of the Law Society in relation to certain lawyers.

(s. 26A(2A)(g) of the Legal

Practitioners Ordinance in item 28 in Schedule 1)

The references to "section 98 of the Mental Health Act 1983" and "section 99 of that Act" are replaced respectively by "section 10D of the Mental Health Ordinance (Cap. 136) (Court's powers in cases of emergency)" and "section 11 of that Ordinance (Appointment of committee)".

(s. 26A(2A)(g) of the Legal

Practitioners Ordinance in item 28 in Schedule 1)


(s. 7G(1), s 7I(2) and s. 7I(3) of the Legal Practitioners Ordinance in s. 2)


(s. 7G(1), s 7I(2) and s. 7I(3) of the Legal Practitioners Ordinance in s. 2)



Legal Practitioners (Amendment) Ordinance (27 of 1998)

Original Terms

Proposed Amendments

Rules of the Supreme Court

(new s. 40M)

Rules of the High Court

(new s. 40M)



Barristers (Qualification) Rules (Cap. 159 sub. leg.)

Original Terms

Proposed Amendments

Attorney General's Chambers

(r. 2(1)(d), r. 3(a)(ii), r. 7(2), r. 9(1)(b) and r. 9(4))

Department of Justice

(r. 2(1)(d), r. 3(a)(ii), r. 7(2), r. 9(1)(b) and r. 9(4))



Solicitors (Trade Marks and Patents) Costs Rules (Cap. 159 sub. leg.)

Original Terms

Proposed Amendments

Governor

(r. 2(1))

Chief Executive

(r. 2(1))



Official Solicitor Ordinance (Cap. 416)

Original Terms

Proposed Amendments

Governor

(s. 2, s. 3 and s. 7)

Chief Executive

(s. 2, s. 3 and s. 7)

Governor in Council

(s. 8)

Chief Executive in Council

(s. 8)

Colonial Regulations

(s. 2(4))

Government regulations

(s. 2(4))

The term "government regulations" is defined to mean "the administrative rules known as the Government Regulations and any other administrative rules or instruments regulating the public service".

(new s. 2(9))


(s. 2(5) and s. 7(2))


(s. 2(5) and s. 7(2))



Admission and Regulation Rules (Cap. 159 sub. leg.)

Original Terms

Proposed Amendments


(r. 8(3)(b) and r. 13)


(r. 8(3)(b) and r. 13)



Solicitors Disciplinary Tribunal Proceedings Rules (Cap. 159 sub. leg.)

Original Terms

Proposed Amendments


(r. 4)


(r. 4)



Solicitors' Practice Rules (Cap. 159 sub. leg.)

Original Terms

Proposed Amendments


(r. 2AA(2), r. 5C(3)(a)(i) and (ii) and (b), (4), (5) and (6)(b))


(r. 2AA(2), r. 5C(3)(a)(i) and (ii) and (b), (4), (5) and (6)(b))



Practicising Certificate (Barristers) Rules (Cap. 159 sub. leg.)

Original Terms

Proposed Amendments


(Forms 1B and 4 in the Schedule)


(Forms 1B and 4 in the Schedule)



Barristers Disciplinary Tribunal Proceedings Rules (Cap. 159 sub. leg.)

Original Terms

Proposed Amendments


(in the definition of and s. 2)


(in the definition of and s. 2)



Foreign Lawyers Practice Rules (Cap. 159 sub. leg.)

Original Terms

Proposed Amendments


(s. 3(2))


(s. 3(2))


(The heading to the Schedule)


(The heading to the Schedule)




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