LegCo Paper No.CB(2) 597/96-97
(These minutes have been seen
by the Administration)
Ref : CB2/BC/23/95
Minutes of the Ninth Meeting of the Bills Committee on the Legal Practitioners (Amendment) Bill 1996
held on Thursday, 21 November 1996 at 4:30 pm in Conference Room B of the Legislative Council Building
Members Present :
Hon Margaret NG (Chairman)Members Absent:
Hon Bruce LIU Sing-lee
Hon IP Kwok-him
Hon Ambrose LAU Hon-chuen, JP
Hon Ronald ARCULLI, OBE, JP *Public Officers Attending:
Hon Mrs Miriam LAU Kin-yee, OBE, JP#
Hon Albert HO Chun-yan #
Clerk in Attendance:
- Hon Mr Paul TANG
- Deputy Director of Administration
- Hon Mr Stephen FISHER
- Assistant Director of Administration
Staff in Attendance:
- HMrs Betty LEUNG
- Chief Assistant Secretary (2) 3
- Hon Mr Arthur CHEUNG
- Assistant Legal Adviser 5
- HMiss Flora TAI
- Senior Assistant Secretary (2) 3
I. Confirmation of minutes of the last meeting
The draft minutes of the eighth meeting held on 18 October 1996 had been issued vide LegCo Paper No. CB(2) 446/96-97 on 18 November 1996. No amendment had been received and the minutes were taken as confirmed.
II. Meeting with the Administration
Inclusion of a ceiling of fine as a disciplinary sanction
2. Members noted that the Hong Kong Society of Notaries (the Society) had suggested the amount of $50,000 as the ceiling of fine as a disciplinary sanction. The letter was issued to members vide LegCo Paper No. CB(2) 230/96-97. After discussion, the Bills Committee decided to support the proposal to include a provision for imposing a fine up to $50,000 on a notary public as a disciplinary action under new proposed section 42(1)(b). The Chairman then asked and Mr Paul TANG confirmed that the Administration remained of the view that there was no need for such a sanction. The Bills Committee would therefore move a Committee stage amendment (CSA) to include the provision.
Amendment on "unsound mind"
3. Members noted that the Administration had agreed to amend the provision for "unsound mind" in proposed section 42(1)(a), as set out in the letter dated 29 October 1996 from the Director of Administration (issued vide LegCo Paper No. CB(2) 275/96-97). The Bills Committee agreed to support the Administrations proposed amendment to section 42(1)(a)(iv), which was in line with the formulation in section 4(4)(b) of the Engineers Registration Ordinance (Cap 409) accordingly.
Powers of the Society with regard to membership fee and admission of members
4. The Chairman informed the meeting to note the Societys response to members concerns raised at the previous meeting, which were: refusal of membership without reasonable ground and imposition of unreasonable amount of membership fee, issued vide LegCo Paper No. CB(2) 319/96-97. Mr Paul TANG opined that the Society had not set out any objective guidelines for the refusal for admission of members.
Statutory mandatory membership of the Society
5. Members noted the following papers which had been issued to them:
- LegCo Paper No. CB(2) 278/96-97 attaching the Secretariats letter to the Director of Administration;
- LegCo Paper No. CB(2) 316/96-97 attaching the letter from the Director of Administration; and
- LegCo Paper No. CB(2) 437/96-97 attaching the Societys letter.
The Chairman asked and Mr Paul TANG confirmed that the Administrations stance with regard to statutory mandatory membership of the Society remained the same. The chairman then asked and members confirmed that their decision on the matter also remained unchanged.
Revised draft of proposed section 41A
6. Members noted that the Assistant Legal Adviser had prepared the second discussion draft of the Committee Stage amendments on Clause 3 of the Legal Practitioners (Amendment) Bill 1996 (issued vide LegCo Paper No. CB(2) 198/96-97). The Assistant Legal Adviser further tabled a revised draft of proposed section 41A for members consideration. At the invitation of the chairman, he explained that the revised proposed section required a person who was registered as a notary public in the Register of Notaries Public to acquire membership in the Society and maintain such membership. However, if he could not comply with the requirements in acquiring or maintaining membership of the Society because of reasons attributable to the Society and not through his own fault, it would not constitute a ground for making a complaint to the Chief Justice for disciplinary sanctions. In response to the chairmans enquiry, the Assistant Legal Adviser confirmed that the effect would allow a notary public to remain on the Register of Notaries Public even though he was not a member of the Society. In this regard, the chairman informed the meeting that the Society had not responded to the second draft of the CSAs sent to it for comment. Mr Bruce LIU pointed out that such provisions allowed flexibility for the Chief Justice and would not enforce mandatory membership of the Society in a strict legal sense.
7. The Chairman and Mr LIU asked whether the revised provision was acceptable to the Administration. Mr Paul TANG explained that the Administrations position not to support the proposal for statutory mandatory membership of the Society was based not only on law, but also on a policy consideration that it was not necessary. Apart from its own legal advice that the proposal would contravene the Hong Kong Bill of Rights, the Administration maintained that there was no need to impose such a requirement on the basis that: (a) the Society was not a regulatory body even though it had a role to assist the Chief Justice; and (b) statutory mandatory membership of the Society would mean a change to the existing system. Mr Bruce LIU remarked that the policy decision on whether it was necessary to impose a mandatory membership requirement was a matter of judgement which should be left to the legislature.
Reasons for the Bills Committees position
8. The Chairman urged the Administration to recognise the status of the Society in view of the fact that the Chief Justice would in practice rely heavily upon the Society to monitor professional standards and conduct of notaries public. She reiterated that the Bills Committee had studied the proposal carefully and cautiously before it decided to support it on the following grounds: (a) the role of the Society in the localised system of appointment should be recognised in the legislation in view of the fact that it had all along been assisting the Archbishop of Canterbury in appointing/disciplining notaries public under the English system; (b) there might be a risk that the Society would not be able to survive after the localisation if no mandatory membership was imposed; (c) the proposed CSAs had struck a right balance between the interest of notaries public and that of the Society; (d) the poll conducted by the Society indicated a very positive response from its members for disciplinary powers to be vested in a Disciplinary Tribunal; and (e) most important of all, the Society had a useful function to play for the benefit of the public. She said that the Bills Committee would not recommend mandatory membership of the Society and would not suggest to ask the court to decide on its legality if it considered that it was incompatible with the right of freedom of association protected by the Article 22 of the International Convenant on Civil and Political Rights (ICCPR). She pointed out that if the Administration did not proceed with the Bill, it would not be able to localise the appointment of notaries public before 1 July 1997. The Chairman urged the Administration to reconsider its stance with extreme care.
Response of the Administration
9. Mr TANG responded that the Judiciary could provide manpower support to the Chief Justice in respect of investigation work and, in fact, the need for investigation work on a notary public rarely happened. He queried why it was felt that the Society might not survive without mandatory membership, against the fact that it had been able to do so in the past. It might be an isolated incident for a notary public to opt not to join the Society. Mr TANG further stressed that the Administration, being a responsible government, had to consider the matter very carefully since the proposal would contravene the Bill of Rights according to its own legal advice. At Mr Bruce LIUs suggestion, the Chairman asked the Clerk to seek information from the Society as to the reasons for one of its members withdrawing from the Society. At members request, Mr Paul TANG agreed to seek legal advice again on the proposed CSAs prepared by the Assistant Legal Adviser as to whether the proposal would still contravene ICCPR.
|10. With reference to the letter dated 7 October 1995 of the then Chief Justice who indicated support to the proposed mandatory membership of the Society, Mr Paul TANG said that the then Chief Justice did not have all the details regarding the proposal when he gave the comment. He further clarified that the Judiciarys view was that mandatory membership and disciplinary responsibility should go together. Therefore, the Administration did not consider that mandatory membership was justified since the Society was not a regulatory body. The Chairman asked and Mr TANG agreed to relay the updated view of the Judiciary on the matter in writing for members consideration.
III. Committee stage amendments
|11. The Chairman asked and Mr Stephen Fisher said that the Administration would provide the CSA for authentic Chinese text of the Bill shortly. In this connection, members agreed that the chairman and the Assistant Legal Adviser would vet the CSAs on behalf of the Bills Committee. The Chairman undertook to liaise with the Assistant Legal Adviser on the way to proceed concerning the CSAs to be moved by the Bills Committee. Members further agreed that the chairman would move the CSAs initiated by the Bills Committee on their behalf.||Adm|
IV. Legislative timetable
12. The Bills Committee recommended that the Bill should resume its Second Reading debate on 8 January 1997. In this regard, members noted that the Bills Committee would report to the House Committee on 6 December 1996 provided that all the CSAs (in both Chinese and English) were in order and the due date for giving notice of CSAs would be 28 December 1996.
V. Any other business
13. The Chairman recorded a note of thanks to representatives of the Administration for their co-operation during the deliberation of the Bill.
14. There being no other business, the meeting ended at 5:30 pm.
29 November 1996
*- out of town
# - other commitments
Last Updated on 10 December 1998