LC Paper No. CB(2)428/98-99
(These minutes have been seen
by the Administration)
Ref : CB2/PL/AJLS
Legislative Council Members Present:
Panel on Administration of Justice and Legal Services
Minutes of Meeting
held on Tuesday, 15 September 1998 at 4:30 pm
in Conference Room A of the Legislative Council Building
Hon Margaret NG (Chairman)
Hon Jasper TSANG Yok-sing, JP (Deputy Chairman)
Hon Albert HO Chun-yan
Hon Martin LEE Chu-ming, SC, JP
Hon James TO Kun-sun
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Hon Emily LAU Wai-hing, JP
Public Officers Attending:
Attendance by Invitation:
- Item III
- Department of Justice
- Mr I G M WINGFIELD, JP
- Law Officer (Civil Law)
- Mr R C ALLCOCK
- Deputy Law Officer
- Mr Benedict LAI
- Deputy Law Officer (Civil law)
- Items IV and V
- Chief Secretary for Administration's Office
- Mrs Carrie YAU
- Director of Administration
- Ms Miranda CHIU
- Deputy Director of Administration
- Ms Rosanna LAW
- Assistant Director of Administration
- Mr S Y CHAN, JP
- Director of Legal Aid
(Ex-officio member of the Legal Aid Services Council)
- Ms Lolly CHIU
- Policy and Administration Coordinator
Legal Aid Department
Clerk in Attendance :
- Items III - V
- Hong Kong Bar Association
- Mr Philip DYKES, SC
- Item III
- The Law Society of Hong Kong
- Mr Raymond HO
Mr Jonathan DAW
- Items IV & V
- Mr Anthony CHOW, President
Mr William TSUI
Mr Patrick MOSS
- Item IV
- Legal Aid Services Council
- Mr LEE Jark-pui, OBE, JP
- Mr Ruy BARRETTO
- Mr John MULLICK
- Mrs Elsie TU, GBM, CBE
- Mr CHONG Chan-yau, MBE
- Mrs Angela CHEUNG
Staff in Attendance :
- Mrs Percy MA
- Chief Assistant Secretary (2) 3
- Mr Jimmy MA, JP
- Legal Adviser
- Mr Paul WOO
- Senior Assistant Secretary (2) 3
I. Confirmation of minutes of meeting on 14 July 1998
(LC Paper No. CB(2)119/98-99)
The minutes of the meeting held on 14 July 1998 were confirmed.
II. Items for discussion at the next meeting
(LC Paper No. CB(2)246/98-99(01))
2. The meeting noted that the Chief Executive's Policy Address would be held on 7 October 1998 and the debate on Motion of Thanks would be held on 21-22 October 1998. A series of briefings for Panels by Policy Secretaries on the Policy Address would be held between the period from 8 October to 20 October 1998.
3. Members agreed that the next meeting to be held on 20 October 1998 would discuss the following items -
- Briefing by the Secretary for Justice on the Chief Executive's Policy Address 1998; and
- Review of binding effect of ordinances
- Binding effect of securites legislation on the Government
- Ordinances binding on the Government but not on relevant PRC organs
4. On item (b)(i) above, members held the view that with regard to the Government's recent massive buying of stocks, shares and futures in the equities markets, the Government should explain why it was immuned from the regulatory provisions of securites legislation such as the Securites Ordinance (Cap. 333), the Securites (Disclosure of Interests) Ordinance (Cap. 396) and the Securities (Insider Dealing) Ordinance (Cap. 395). Members of the Panel on Financial Affairs would be invited to attend for discussion of this item.
III. Review of ordinances binding on the Government but not on relevant PRC organs
(LC Paper Nos. CB(2)262/98-99(01); CB(2)246/98-99(02) and CB(2)200/98-99(01))
5. Members noted that in the course of scrutinizing the Adaptation of Laws (Interpretative Provisions) Bill, which was introduced into the Provisional Legislative Council (PLC) on 25 February 1998, concern was expressed as to why certain ordinances should be binding on the Hong Kong SAR Government but not on relevant organs of the PRC. The Secretary for Justice (S for J) undertook, in a letter dated 3 April 1998 to Members of the PLC, to conduct a review of the 17 relevant ordinances that were expressed to be binding on the Government in order to decide whether "this difference in treatment can be justified". The same undertaking was repeated in the Secretary's speech delivered at the resumption of the Second Reading debate on the Bill on 7 April 1998. It was announced to the public at large. While members were made to expect a report on a policy review with justifications and explanations, they were disappointed that the paper prepared by the Administration for the meeting (LC Paper No. CB(2)262/98-99(01)) only set out the relevant sections of the 17 ordinances which imposed obligations or liabilities, without providing any detailed analysis or conclusion on whether "the difference in treatment can be justified", as promised by the S for J.
6. In response, Law Officer (Civil Law) (LO(CL)) explained that the review of the 17 ordinances arose in the context of the adaptation of the Interpretation and General Clauses Ordinance (Cap. 1), in particular in relation to section 66 of the Ordinance which, as at 30 June 1997, provided that "no Ordinance shall in any manner whatsoever affect the right of or be binding on the Crown unless it is therein expressly provided or unless it appears by necessary implication that the Crown is bound thereby". The 17 ordinances in question were singled out for review because they bound the Hong Kong Government but not the Crown in the right of the Government of U.K. The purpose of the review was therefore to examine if the justifications for a distinction between the Hong Kong Government and the Crown in the right of the Government of U.K. continued to apply in relation to the application to the SAR Government on the one hand and the rest of the relevant PRC organs on the other, after the reunification.
7. Concerning members' queries as to why a complete review with recommendations and conclusions was not in place, LO(CL) replied that the review had to be conducted in two stages. The first stage was a legal analysis of the 17 ordinances which the Department of Justice (D of J) had already completed and provided in the paper given to the Panel. The objective of this analysis was to highlight the obligations and liabilities created by each of the ordinances as well as the sanctions for their non-compliance. This analysis would assist the second stage of the review, in which the respective policy Bureaux responsible for the ordinances would examine the issues identified in the legal analysis against the policy background and formulate their recommendations for changes, if necessary, having regard to relevant policy considerations.
8. Members considered that it was important that the Administration should explain in detail the justifications and the guiding policy principles as to why certain ordinances should bind the SAR Government but not relevant State organs and that an overall review to achieve that purpose should be completed as soon as possible. The Chairman added that she had previously spoken to the S for J on the matter and was advised that the review would have been completed in August 1998. In connection with the adaptation of the relevant references in Cap. 1, Mr Martin LEE asked whether the Administration would consider introducing an amendment bill to repeal the Adaptation of Laws (Interpretative Provisions) Ordinance passed by the PLC so that a re-debate on the issues involved by Members of the Legislative Council could take place.
9. LO(CL) informed members that the present position was that the D of J after completing its legal analysis of the 17 ordinances had requested the policy Bureaux to proceed to review the ordinances from a policy point of view. Such request had been made in or before July 1998. He added that whether or not certain ordinances should be amended in any way, such as to extend the binding effect to cover relevant State organs, was a matter of policy for the individual Bureaux that had policy responsibilities for the ordinances concerned. The D of J had yet to receive recommendations from the various policy Bureaux on whether there was a need for introducing legislative amendments. The D of J was therefore not in a position at this stage to advise the Panel on the progress of and timeframe for completing the review.
10. Deputy Law Officer (DLO) supplemented that the D of J had enquiried with the Commonwealth Legal Advisory Service on whether any general policy had been developed in common law jurisdictions regarding the binding effect of legislation on the State. It was advised that the matter had to be decided on a case by case basis having regard to the nature and substance of the legislation in question. He added that in the case of the Arbitration Ordinance (Cap. 341), for example, the relevant provisions were at one stage binding on the Crown and subsequently amended to bind the Government. The Department was considering whether the Ordinance should be further amended so that it would apply to the State generally. As far as the overall review of the ordinances was concerned, the role of the D of J was advisory in that it offered legal policy advice to the other policy Bureaux. In the end, it was for the policy Bureaux to decide on whether and how particular ordinances should bind the State or the Government. If it was decided as a matter of policy that amendments should be introduced to existing legislation, the policy Bureaux would consult the Legislative Council on the relevant subject matters in due course.
11. Referring to section 66 of Cap. 1, Mr Martin LEE asked whether any attempt had been made by the Administration to identify ordinances which contained provisions binding on the SAR Government and the State "by necessary implication". DLO responded that the aspect of "necessary implication" did not form part of the current review. He said that whether particular legal provisions bind the Government and the State by necessary implication was a difficult legal question the conclusion of which would always be debatable. Hence, rather than getting into the area of "necessary implication", the current review was confined to deciding whether particular ordinances should bind the State or the Government as a matter of policy. That policy would be reflected, where necessary, in express provisions.
12. The Chairman expressed the view that the scope of the overall review, rather than being restricted to the 17 ordinances, should be broadened to cover other ordinances. The Legal Adviser pointed out that, following the adaptation of section 66 of Cap.1 whereby legislation which were expressed to be binding on the "Crown" were construed to be binding on the "State", the review could be for studying the effect, if any, of the application of "State" in the ordinance.
13. In response, LO(CL) said that existing ordinances, which exceeded 600 in number, could be classified by way of their binding effect as follows -
- ordinances which were expressed to be binding on Hong Kong SAR Government but not on other relevant organs of the State (17 ordinances);
- ordinances with express provisions which applied to the State, i.e. both the SAR Government and other organs of the State (60 ordinances);
- ordinances which did not necessarily bind the Government in their application but contained express references to public officers and imposed statutory responsibilities on them (36 ordinances); and
- the remaining ones which covered a wide range of different subjects and which were silent in respect of their binding effect and therefore presumed not to be binding on the SAR Government and the relevant organs of the State. In many of these ordinances, the question of applicability to the State did not arise as the ordinances related to natural persons only.
Views of the Law Society of Hong Kong
14. Mr Raymond HO concurred with the view that a review of the 17 ordinances was not conclusive. Other ordinances which bound the State or the Government by necessary implication, and which applied to public officials should also form part of a comprehensive review. In particular, he pointed out that in relation to a previous submission from the Law Society, the S for J had confirmed that the Hong Kong Bill of Rights Ordinance (Cap. 383), by virtue of section 7 of that Ordinance, bound the State because "public authorites" included the State. He opined that for the sake of certainty, the meaning of "public authorities" should be clarified.
15. Mr Jonathan DAW said that a clarification of the definition of "State" should form the starting point from which the review should be taken forward. A fundamental question was whether the current definition with its references to "executive functions", "central authorities" and "subordinate organs" had sufficient clarity in meaning for members of the general public and those who would be affected by the legislation to understand.
Views of the Hong Kong Bar Association
16. Mr Philip DYKES opined that the fundamental constitutional principles behind the adaptation were of particular significance and should be clarified at an early stage.
The way forward
17. The Chairman said that a comprehensive review of the binding effect of individual ordinances should be proceeded with more expeditiously. In so far as legal policy was concerned, the Administration should explain to the Panel why, as the law now stood, a distinction had been made in the binding effect of certain ordinances on the Government and the State.
18. To facilitate follow-up discussion at the next meeting, the Administration was asked to respond to the following points -
- to clarify the meaning and scope of the statutory definition of "State" in the context of section 66 of the Interpretation and General Clauses Ordinance (Cap. 1);
- to explain the general legal and constitutional principles as well as policy considerations in determining the binding effect of an ordinance on the SAR Government and the State;
- on the review of the 17 ordinances which were expressed to be binding on the SAR Government but not on relevant PRC organs, to -
- advise progress and timeframe for completing the review; and
- give recommendations as to whether changes were necessary, and if not, justifications for the difference in treatment;
- other than the 17 ordinances which were under review, to consider conducting a review of other ordinances which, although without express provisions on binding effect, might bind the State or the Government by necessary implication; and
- as regards the classification into four categories of existing ordinances by way of their binding effect listed in paragraph 13 above, to provide a more detailed description and breakdown of such classification.
19. In view of the unsatisfactory progress of the review and the Administration's comments on the role of D of J in co-ordinating and collating the review, members agreed the Chairman of the House Committee should be asked to bring the matter to the attention of the Chief Secretary for Administration.
(Post-meeting note - A letter from Chairman of the Panel to Chairman of the House Committee has been issued on 16 September 1998.)
IV. Study on an independent legal aid authority
(LC Paper Nos. CB(2)207/98-99(01); CB(2)229/98-99(01); CB(2)270/98-99(01); and "Report on the Feasibility & Desirability of the Establishment of an Independent Legal Aid Authority 1998" by Legal Aid Services Council)
20. The Chairman welcomed the representatives of the Legal Aid Services Council (LASC) to the meeting. On the invitation of the Chairman, the Chairman of LASC (Chairman, LASC) informed the Panel that following the completion of a consultancy study commissioned by the LASC to assess the desirability, practicability and cost-effectiveness of setting up an independent legal aid authority (LAA), the LASC had finalised its recommendations which had recently been submitted to the Chief Executive for his consideration. Copies of the LASC's Report were tabled at the meeting for members' information. The LASC's recommendations were summarized in Chapter One of the Report as follows -
- An independent statutory LAA should be established, with a board to reflect relevant interests, including a member nominated by Duty Lawyer Service (DLS). LAA would advise the Government on legal aid policies and be accountable for the delivery of legal aid services currently under the Legal Aid Department (LAD).
- The Director of Legal Aid (DLA), the Deputy Directors and Assistant Directors should be seconded to LAA upon its establishment. By the end of the first year, they will need to decide whether to apply to join LAA or to remain as civil servants and be redeployed elsewhere.
- The rest of the staff in LAD should also be seconded to LAA upon its establishment to ensure sustained delivery of legal aid services. By the end of the second year, staff will need to decide whether to apply to join LAA or to remain as civil servants and be redeployed elsewhere.
- Upon establishment of LAA, all new staff should be employed by LAA itself.
- The operation of LAA should be financed from public revenue and current funding arrangements, with no ceiling on LAD's expenditure on legal services, should continue so as to ensure that operational independence will not be compromised by financial constraints.
- An independent Official Solicitor's (OS) Office should be established, with a dedicated OS.
- The lay membership of DLS Council should be increased to the same number as members of the legal profession, i.e. eight for each type. Also, one of the lay members should be nominated from LAA's board. At the end of the third year of LAA's establishment, LAA should review the feasibility of DLS merging with it.
21. Chairman, LASC also drew members' attention to the proposed composition of LAA Board, which comprised a total of 11 members, as set out in Annex I of the Report.
22. In response to members' enquiries, Chairman, LASC said that LASC acknowledged the Consultants' findings that there were inherent weaknesses in the existing arrangements for legal aid which should be rectified. The Consultants had proposed a model which provided increased powers and resources to the LAA and made it the employer of the Director and Deputy Directors of Legal Aid. However, having taken into account the need to enhance effective operational management and service delivery and for the sake of a smooth transition, the LASC had made some revisions to the proposed model and recommended the adoption of a phased approach as mentioned above.
23. Regarding stakeholder groups' perceptions and public concern about the LAD's independence from the Government, Chairman, LASC said that many Members of the Legislative Council and the legal profession were in favour of the establishment of an independent LAA. Views among the legal aid practitioners and LAD clients about the need for change, however, were divergent. None of the community groups including voluntary organisations and trade unions consulted believed that LAD operated independently and accepted the existing structure. According to the public opinion survey, around one in five members of the general public considered the LAD did not operate independently. In so far as staff of the LAD was concerned, departmental staff such as legal counsels and law clerks were not in support of disestablishment of the LAD. In general, the staff were concerned about disruption to services, loss of job security, effect on morale and changes in terms and conditions of employment.
24. In response to Mr James TO's enquiry, Chairman, LASC said that the departmental staff of LAD maintained that they were more independent as civil servants than they would be as employees of LAA because they were employed on permanent terms of appointment and job security allowed them to perform their duties independently. However, the LASC was of the view that independence should be built upon an institutional framework which was independent of both the Government and the legal profession and that the administration of legal aid services through an independent LAA would enhance the rule of law.
Views of the Law Society of Hong Kong
25. Mr Anthony CHOW said that the Law Society was in principle supportive of the establishment of an independent LAA. The Society would provide a written submission on the LASC's Report in two to three months' time.
Views of the Hong Kong Bar Association
26. Mr Philip DYKES said that it had been the long standing position of the Bar that there should be an independent body for the administration of legal aid services and it would like to see such a body to be set up in the near future. He added that the Bar would submit its response pending the Government's final views on the subject matter.
27. The Director of Administration (D of A) informed the meeting that the Administration had started examining the LASC's Report. The Administration would revert to the LASC and the Panel with its decisions in due course.
28. The Chairman suggested that the subject matter be brought up for review at the meeting scheduled for December 1998.
V. Legal Aid Policy Review
(Consultation Paper on Legal Aid Policy Review 1997; LC Paper Nos. CB(2)207/98-99(02); CB(2)200/98-99(02); and CB(2)270/98-99(01))
29. D of A briefed members on the public's responses to the findings and recommendations in the Legal Aid Policy Review 1997 as contained in a consultation paper released in December 1997. She said that the Administration had received a total of 13 submissions on the various recommendations made in the consultation paper relating to, inter alia, the method for assessing the financial capacity of an applicant for legal aid; the financial eligibility limits for the legal aid schemes; legal assistance covering coroners' inquests; a revamped scale of contribution to be made by legally aided persons; and the DLA's discretion not to discharge a legal aid certificate even if the financial resources of a legally aided person had exceeded the respective financial eligibility limits after legal aid had been granted etc. Details of the recommendations of the consultation paper and a summary of the public responses received were set out in LC Paper No. CB(2)207/98-99(02).
30. Mr Philip DYKES enquired about the reasons for the Working Group's recommendation to empower the DLA to recover any loss to the Legal Aid Fund which resulted from the failure on the part of the assigned solicitor or counsel to comply with the requirement of direct payment to DLA or other provisions of the Legal Aid Ordinance. DLA replied that by law, DLA was entitled to a first charge on moneys recovered for the aided person in the proceedings. However, there had been instances that the assigned solicitor had failed to protect this first charge, for example, where the opposite party or his solicitors paid moneys direct to the aided person without notifying the DLA. In some other cases, the assigned solicitor made direct payment to the aided person rather than the DLA, after receiving the amount from the opposite party. In order to better protect the Legal Aid Fund, a recommendation was made to amend the Legal Aid Ordinance so that the requirement to make direct payment to DLA should apply not only to the person responsible for payment (i.e. the opposite party) but also to assigned solicitor acting for the aided person, and DLA should be empowered to recover any loss arising from the failure to comply with the requirement of direct payment to DLA.
31. The Chairman and Mrs Miriam LAU pointed out that in certain cases where an agreement was reached out-of-court between both parties, or a lump sum award was made by the court in favour of the aided person, the two parties might settle the amount between themselves without the assigned solicitor being aware of the actual payment. In response, DLA explained that the assigned solicitor would not be held responsible for the liability if he had no prior knowledge about the payment.
32. Mr Patrick MOSS said that under the provisions of the Legal Aid Ordinance, no valid receipt would be issued to the person responsible for payment if the payment was not made in accordance with the Ordinance. There was hence a remedy for the DLA to ask that person to make the payment again. DLA answered that there were practical difficulties for the LAD to recover the amount if payment had already been made to the aided person. The purpose of the proposed amendment was to improve the safeguard to achieve better compliance with the requirement of direct payment to DLA in legally aided cases.
33. The Chairman opined that it was an unjustifiably harsh punishment to hold the assigned solicitor responsible for the payment in the circumstances described. She called upon the Administration to reconsider the proposal in the interests of fairness to all parties concerned. D of A noted the meeting's views.
34. Referring to coroners' inquests where public interest was at issue, Mr James TO suggested that to ensure that justice was done, legal assistance should be granted to members of the bereaved family to pursue their claims. He cited the system in Australia where, subject to other eligibility criteria, legal assistance was available to the family of the deceased where the case involved was of great public concern. In this connection, the Chairman referred members to a submission from the Hong Kong Human Rights Monitor which was tabled at the meeting. (LC Paper No. CB(2) 270/98-99(01)) The Administration responded that the issue would be considered in the Administration's deliberation of the consultation exercise.
35. The Chairman suggested that consideration should also be given to waiving the means test for legal aid applicants who were employees involved in appeal cases brought by employers against judgments of the Labour Tribunal on a point of law. She pointed out that unlike cases heard at the tribunal where legal representation was not required, the employee would face bearing much higher legal costs if the case was taken to a higher court on appeal by the employer. DLA replied that the Administration had to carefully consider the financial and other implications involved in implementing the suggestion. He added that most of the employees involved in appeal brought by employers were able to pass the means test and granted legal aid.
36. Mr James TO asked whether a legal aid recipient's case would be prejudiced if the opposite party was also legally assisted, hence making the LAD unlikely to recover the full legal costs. DLA said that legal aid was given on the merits of the case and subject also to other eligibility criteria applicable. In some cases, legal assistance was available to both parties to the litigation if they both met the criteria. The LAD would review such cases at different stages in the process to determine if legal aid should continue to be made available.
37. The Chairman enquired of the timeframe for completing the review. D of A said that a final report would be released after a thorough study of the public's submissions. The tentative timetable was that the legislative amendments would be put to the Legislative Council for deliberation within the current legislative session.
38. Members agreed that discussion of the subject matter should continue at another meeting before the Administration published its final report.
39. There being no other business, the meeting ended at 6:45 pm.
Legislative Council Secretariat
15 October 1998