LegCo Paper No. CB(2)2208/96-97
(These minutes have been seen
by the Administration)
Ref : CB2/PL/AJLS
LegCo Panel on Administration of Justice and Legal Services
Minutes of the Eighth Meeting held on Wednesday, 16 April 1997 at 10:30 am in Chamber of the Legislative Council Building
Members Present :
Hon Margaret NG (Chairman)
Hon Ronald ARCULLI, OBE, JP
Hon Mrs Miriam LAU Kin-yee, OBE, JP
Hon Emily LAU Wai-hing
Hon Eric LI Ka-cheung, OBE, JP
Hon James TO Kun-sun
Hon Albert HO Chun-yan
Hon Ambrose LAU Hon-chuen, JP
Members Absent :
Hon Andrew CHENG Kar-foo (Deputy Chairman)
Hon Martin LEE Chu-ming, QC, JP
Dr Hon Philip WONG Yu-hong
Hon David CHU Yu-lin
Hon Bruce LIU Sing-lee
Public Officers Attending :
Attendance by Invitation :
- For Items IV and VI
- The Hong Kong Bar Association
- Mr Lawrence LOK, QC
- Vice-Chairman
- Mr Johnny CHAN
- Member of the Special Committee on Criminal Law and Procedure
- For Item IV
- The Law Society of Hong Kong
- Mr Herbert TSOI
- Chairman, Standing Committee on Compliance
- Mr Anthony CHOW
- Council member
- Mr Tony HARROD
- Director of Compliance
- For Items IV and V
- The Law Society of Hong Kong
- Mr Christopher CHAN
- President
- Mr Patrick MOSS
- Secretary General
Clerk in Attendance :
- Ms Doris CHAN
- Chief Assistant Secretary (2) 3
Staff in Attendance :
- Mr Jimmy MA
- Legal Adviser
- Miss Flora TAI
- Senior Assistant Secretary (2) 3
I. Confirmation of minutes of last meeting and matters arising
The minutes of the regular meeting held on 10 March 1997 were issued to members vide LegCo Paper No. CB(2) 1807/96-97. No amendment was received and the minutes were confirmed.
Use of language at public hearings
2. The Administration had provided information, as requested by the Panel, on the use of language at the public hearings of the Commission of Inquiry into the Garley Building Fire and the general principles regarding the use of Chinese and English at public hearings of a commission of inquiry, which had been issued vide LegCo Paper No. CB(2) 1773/96-97 on 9 April 1997. Members agreed not to pursue the matter at the present stage.
II. Date of next meeting and items for discussion
3. The next regular meeting was scheduled for Monday, 12 May 1997 at 4:30 pm. Members agreed that the meeting should discuss :
- The Judicial Service Commission and the Judicial Officers Recommendation Commission; and
- Operation and effectiveness of bailiffs work.
| Members agreed that: (a) representatives from the Administration Wing and the Judiciary Administrators Office should be invited to attend the meeting for agenda item a); and (b) a paper setting out background information on the Judicial Service Commission and its transition should be provided to facilitate the discussion. Members further agreed to invite views from the legal profession on the bailiffs work. | Clerk
Clerk
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| 4. Referring to item two of the list of outstanding items for discussion, the Chairman asked the Clerk to check with the Attorney Generals Chambers (AGC) about: (a) the progress of the review on the future of the Court Prosecutor grade scheduled to be conducted in March 1997; and (b) when the review would be ready for reporting to the Panel. | Clerk |
III. List of information papers circulated to members of the Panel since the last meeting
5. Members noted the information papers circulated to them since the last meeting as listed in Appendix II of the Agenda.
IV. Inspectorate Scheme of the Law Society of Hong Kong
(LegCo Paper No. CB(2) 1805/96-97(01))
6. At the invitation of the Chairman, Mr James COLLINS briefed members on the information paper provided by the AGC on the Effectiveness of the Inspectorate Scheme Operated by the Law Society of Hong Kong in respect of Touting and Commission-taking in Criminal Defence Work (the Paper) (LegCo Paper No. CB(2) 1805/96-97(01)). Mr COLLINS emphasized that it had always been the position of the Administration that: (a) self-regulation was the better way of policing the conduct of the legal profession; (b) criminalization should only be the option if self-regulation to eradicate the problem of touting and commission-taking had clearly failed; and (c) legislation should only be employed for the limited purpose of assisting the Law Society of Hong Kong (the Law Society) to conduct self-regulatory measures.
7. Mr COLLINS then drew members attention to the conclusion of the assessment report conducted by the Independent Commission Against Corruption (ICAC) on effectiveness of the Inspectorate Scheme operated by the Law Society (the ICAC Report) that self-regulation was working effectively in respect of touting and commission-taking in criminal defence work and there was no need to introduce criminal sanctions or statutory intervention at the present stage. The Administration acknowledged the vital part played by the Hong Kong Bar Association (the Bar) and the Law Society for such an achievement. However, the need for vigilance was recognized and the Administration supported the ICACs recommendation to analyse the court chits periodically. The Administration was also aware of similar practices in respect of conveyancing transactions which had still to be addressed.
| 8. The Chairman then invited comments from Mr Christopher CHAN. Mr CHAN said that the Law Society was pleased that the premise of self-regulation and the Inspectorate Scheme had been found to be working effectively by the ICAC Report. He added that the anti-touting publicity campaign had also helped to educate the public. He assured the Panel and the public that the Law Society would, with the co-operation with the Bar, continue with its efforts in combating touting and commission-taking activities in criminal defence work. However, Mr CHAN expressed disappointment at the inclusion of the section headed "Touting and Commission-taking in Conveyancing" in the Paper without the knowledge of the Law Society. In response to Ms Emily LAU, Mr COLLINS explained that touting and commission-taking in conveyancing was not part of the present Inspectorate Scheme. However, the Inspectorate Scheme could be extended to cover that area if necessary. Although the Administration understood that touting and commission-taking in conveyancing was not covered under the agenda item, it was the view of the AGC that there was a need to include a marker regarding touting and commission-taking in conveyancing in the Paper because it was considered appropriate to look ahead and keep possible problems under review The Chairman remarked that the Working Party on Touting and Commission-taking in Conveyancing should form a separate item. Mr CHAN then briefed members on the letter from the Law Society in response to the Paper, which was tabled at the meeting and subsequently issued to absent members vide LegCo Paper No. CB(2) 1909/96-97. Mr CHAN stressed that the Law Society had never been requested by the AGC to produce a report on touting and commission-taking in conveyancing but was willing to do so if required. The Law Society welcomed the opportunity to discuss the issue in public. Ms Emily LAU therefore suggested and members agreed that touting and commission-taking in conveyancing should be an agenda item for the next meeting. At the request of the Chairman, Mr CHAN agreed to provide a progress report of the Working Party on Touting and Commission-taking in Conveyancing for members consideration. The Chairman also suggested that the Law Society should provide the Administration with the report for comment in advance. | Clerk
Law Society |
| 9. The Chairman asked and Mr Lawrence LOK informed members that the Bar had also introduced its own inspectorate scheme on 4 March 1997 under which inspection of magistrates courts would be conducted without prior notice. The Bar was still pursuing enquiries into 14 cases referred to in para. 15 of the Paper which involved four barristers. Three of them had responded and the Bar was satisfied that no impropriety took place in those instances. There had been no response from the remaining barrister for two months who had been out of town and not been practising actively for a long time. He assured members that the Bars Special Committee on Criminal Law and Procedure would take appropriate action if impropriety was found. At the Chairmans request, Mr LOK undertook to revert to members once a response from the barrister concerned was available. | the Bar
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| 10. Mrs Miriam LAU asked what action the Bar would take in relation to practices of under-the-table "kickbacks" as mentioned in para. 16 of the Paper. Mr Lawrence LOK responded that court chits would not show whether there was any arrangement of under-the-table "kickbacks" between the solicitor and the barrister. He explained that the Bar would take action against such kind of arrangement, which was a criminal offence, under section 9 of the Prevention of Bribery Ordinance (Cap. 201), but he pointed out that it was very difficult to detect corruption activities. In this regard, the Chairman asked and Mr Jeremy RICHARDSON responded that the nature of such kind of transaction was normally a straight-forward handover of cash which was extremely difficult to detect unless there was prior suspicion that a particular person was involved. However, he assured members that the ICAC would follow up if there was a hint that a particular barrister was suspected of involvement in this sort of activity. Mrs LAU remarked that the Bar should play a pro-active role in combating "kickbacks". Ms Emily LAU shared her view. Mr LOK pointed out that the Bar did not have the resources to police barristers closely. However, the Bar would no doubt refer any suspicious case to the ICAC for further investigation. Mr James TO suggested that the Law Society could assist in detecting "kickbacks" by ways of finding out how many solicitors firms whose business included a considerable amount of criminal defence work would rely on clerks to retain barristers and what monitoring mechanism was in place to prevent any malpractice. Mr Herbert TSOI responded that solicitors firms varied in their ways of retaining barristers. The Law Society was therefore unable to give a response until the findings were available. As concerted efforts were required to combat such kinds of malpractice, the Chairman suggested the Bar, the Law Society and the ICAC to work out an effective means of investigation together at their regular meetings. At Ms LAUs suggestion, members agreed that any progress could be reported at the Panels regular meeting in June 1997. | Clerk |
11. The Chairman summed up by saying that the Law Society had put in a lot of time and effort in designing and conducting the Inspectorate Scheme and the two branches of the legal profession should be congratulated on their achievement in eradicating the malpractice of touting and commission-taking in criminal defence work.
V. Progress on mutual legal assistance agreements
Progress on Mutual Legal Assistance(MLA) in Criminal Matters
(LegCo Paper No. CB(2) 1805/96-97(02))
12. Members noted that the Mutual Legal Assistance in Criminal Matters Bill (the Bill) would be introduced into LegCo on 23 April 1997. As a Bills Committee would very likely be formed to study the Bill in detail, the Chairman suggested and members agreed that the discussion would focus on the policy aspect only. In response to Ms Emily LAUs enquiry about the progress of criminal MLA programme (para. 4 of the paper referred), Mrs Carrie YAU explained that the criminal MLA programme was a relatively new area in the international community and Hong Kong had made good progress in its negotiations. It was not necessary to complete all the negotiations before 1 July 1997 so long as the relevant legislative framework was in place to underpin those MLA agreements which were ready to be brought into force. Any new MLA agreements signed after 30 June 1997 would be implemented under the MLA in Criminal Matters Ordinance to be enacted. Mr John HUNTER supplemented that agreement with the US had been signed and the first round of negotiation had been started with another five countries. However, Singapore, Belgium, Japan and Germany had declined the request for negotiations on the ground that they did not have legislation on criminal MLA or there was no practical need. Ms LAU further asked and Mrs YAU responded that Hong Kong was not prohibited from rendering assistance to jurisdictions, with which it had no MLA agreements, via other means such as through Interpol for individual cases on need basis, and vice versa. However, the advantage of having MLA agreements was to ensure certainty for both sides and reciprocal international co-operation. Mr HUNTER added that assistance to jurisdictions with which Hong Kong had no MLA agreements would be limited to the taking of evidence until the Bill was enacted. It was therefore important to enact the legislation and to have MLA agreements in place in order to guarantee the availability of a wider range of MLA.
13. Mr Ambrose LAU asked whether there was any similar legislation on MLA in other jurisdictions which did not prohibit the jurisdiction concerned from rendering assistance to jurisdictions with which it had no MLA agreements. Mr HUNTER explained that the Bill was deliberately drafted to provide the flexibility to the effect that Hong Kong could render assistance to the requesting jurisdiction in the absence of MLA agreement. However, he stressed that Hong Kong would have complete discretion in assessing whether or not to accede to the request.
14. The Chairman expressed concern about the lack of progress in MLA in criminal and civil matters between Hong Kong and the Mainland of China. Mrs Carrie YAU responded that the Administration recognized the value of putting in place MLA in criminal and civil matters between Hong Kong and the Mainland of China. However, the Chinese side maintained that relations between Hong Kong and other parts of China after 30 June 1997 were internal matters which were to be dealt with under Article 95 of the Basic Law. The Chairman asked and Mrs YAU confirmed that the Bill had therefore stipulated clearly that it only regulated co-operation with third countries on MLA in criminal matters and it did not apply to China. As regards the co-operation with the Mainland of China, Mrs YAU explained that as the Chinese side had confirmed agreement to the Bill, it was the wish of the Administration that future arrangements in criminal MLA with the Mainland of China would follow the principles and the spirit of the Bill. However, details would have to be worked out in further negotiation with the Chinese side.
Legal and Procedural Co-operation in the Civil and Commercial Field between Hong Kong and the Mainland of China
(LegCo Paper No. CB(2) 1805/96-97 (03))
15. With reference to the legal and procedural co-operation in the civil and commercial field between Hong Kong and the Mainland of China, the Chairman asked and Mr Kenneth YUEN informed members that the Chinese side had indicated that the matter would be dealt with through the Team of the Chief Executive (Designate). The Administration was therefore pursuing the matter with the Secretary of Justice (Designate). Members noted that the Secretary of Justice (Designate) had raised the matter with the Hong Kong and Macau Affairs Office and the latter undertook to respond in due course. Ms Emily LAU asked what would be the consequence if the matter could not be settled by 1 July 1997. Mr YUEN emphasized that the Administration had raised the matter with the Chinese side through various channels by pointing out the importance and urgency of the matter. He explained that the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the 1965 Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil and Commercial Matters had provided the basis for the present arrangements for reciprocal enforcement of arbitration awards and service of documents. If there was no agreement with the Chinese side on these matters by 1 July 1997, the service of documents, for instance, might have to be effected by means other than that established under the Hague Convention. In this connection, the Chairman asked and Mr Christopher CHAN pointed out that there would be practical difficulties for the legal profession after these international conventions ceased to be in force in Hong Kong after 30 June 1997. Although any Hong Kongs solicitor could appoint a local solicitor or an agent in the Mainland of China to deliver the documents relating to civil litigation to the accused and the court would normally accept such kind of service of documents if affidavit was made, it was time-consuming and complicated, possibly resulting in adverse consequences. However, Mr CHAN reminded members that it was difficult to enforce international conventions and the existing system of service of documents only applied to Guangdong province.
| 16. Mr James TO suggested that the Panel should discuss the matter, as a follow-up, with the Secretary of Justice (Designate) at a formal or informal meeting. In this regard, the Chairman asked and Legal Adviser explained that the Panel could invite any person to attend its meeting. However, the Panel should clarify the capacity of that person in attending the meeting. The Chairman undertook to follow up the arrangement with the Clerk. Ms Emily LAU then suggested and members agreed that the Clerk should also forward a set of all relevant papers to the Secretary of Justice (Designate) for reference so as to reflect members concern on the matter. | Chairman
Clerk |
VI. Sentences of serious crime cases
(LegCo Paper No. CB(2) 1805/96-97(04))
17. At the invitation of the Chairman, Mr I Grenville CROSS stressed that sentencing was one of the difficult and responsible tasks which any court of criminal jurisdiction had to exercise by weighing all competing factors carefully. Mr James TO asked whether the Attorney General had reviewed the sentencing for manslaughter cases which had aroused public attention in recent years and concluded that the sentences had been appropriate. Mr CROSS responded that the Attorney General had monitored the sentencing for manslaughter cases with extreme care. Although the Court of Final Appeal had set guidelines to assist sentencing courts for other offences such as rape and robbery, it had made it clear time and again that it was not possible to do so for the offence of manslaughter on the grounds that the circumstances surrounding such an offence varied so enormously. In this connection, Mr TO suggested that the Administration should consider asking the Court of Final Appeal to categorize manslaughter cases, despite its wide spectrum, and establish guidelines for each category in sentencing. Mr CROSS responded that it would not be appropriate for the AGC to intervene if the Court of Appeal had maintained that it was not possible to do so because of the wide spectrum of manslaughter cases. Nevertheless, the sentencing courts would bear in mind any aggravating factors in imposing sentence.
18. In the light that the courts of appeal had made clear that sentencers should neither ignore nor be influenced by public opinion, the Chairman asked how the AGC would deal with cases in which the public response was that the sentence was manifestly inadequate. Mr CROSS explained that the Attorney General would study the relevant papers for that particular case. His consideration would be to see whether the guidelines set by the Court of Final Appeal for sentencing courts, if there was any, had been correctly applied and whether the judge had given sufficient justification for imposing a lenient sentence. He added that public opinion would not be disregarded because: (a) the society itself was expected to take revenge upon the defendant on behalf of the victim so that the grudges which the victim or the family might otherwise feel would be assuaged; and (b) there was a High Courts judgement that a sentence imposed should express the public resentment of the crime in question and leave the victim and the family with the feeling that the defendant had been adequately dealt with.
19. Ms Emily LAU asked how the AGC would interpret the statement of the Court of Appeal that the power of review was conferred to correct errors in exceptional cases. Mr CROSS reminded members that the Court of Appeal had also stated subsequently that the Attorney General might consider seeking a review if the sentence could be said to be unduly lenient. However, he pointed out that many sentences were unduly lenient but not all of them were exceptional. The Attorney General therefore had to carefully consider whether there was any special reason for a lenient sentence and whether there was any particular factor which required him to seek a review in the public interest. Ms LAU further asked and Mr CROSS confirmed that the view of the legislature would have bearing, by way of setting the maximum penalty for specific offence, on the sentencing courts. The Chairman was concerned that members of the public would not have any other way to address their puzzlement about the inappropriateness of sentences if the Attorney General did not seek a review. Mr CROSS stressed that deviation from guidelines was acceptable if there was a good reason to do so. In this connection, Mr James TO remarked that the AGC should consider ways of publicizing aspects and principles of sentencing and explain to the community on public occasions various factors which would and would not be legally included in the consideration by sentencing courts. Mr CROSS explained that members of the public could obtain a full judgement of any particular case from the AGC and seek information from the Public Relations and Information Unit of the AGC to assist their understanding of any particular case.
| 20. Mr Albert HO informed members that he had received complaints from the victims and their families that sentences had been unreasonably low and that not all relevant evidence had been presented to the court before sentencing. He asked whether the Administration would consider there was any need to review the role of the prosecution in a criminal court who at present could not address the court in respect of sentencing. Mr CROSS explained that the AGC could in fact have input into the sentencing process by bringing relevant guidelines and tariff decisions to the attention of the sentencing judges. Amendments to the Organized and Serious Crimes Ordinance (Cap. 455) and the Dangerous Drugs Ordinance (Cap. 134) had enabled the prosecution to invite the judge, after conviction, to consider evidence that the accused involved in the offence had made use of minor so that heavier sentence might be imposed, if considered appropriate. The AGC therefore did not consider the role of the prosecution too limited in the sentencing process. Mr CROSS added that the Attorney General, as the administrator of justice, was not in a position to push the judge to impose a heavier sentence. Mr HO further asked whether there was assurance that all relevant evidences would be presented to the court in relation to sentence. Mr CROSS said that the Attorney General would take a serious view of the matter if not all relevant evidence had been presented to the court for sentencing because the prosecution was under clear instruction to give an accurate picture of the crime in question to the court. In this regard, Mr James TO remarked that it was important for the AGC to strike a right balance in reaching the agreed facts of a case with the defence because it was the basis for sentencing. He therefore asked and Mr CROSS agreed to consider whether the victim and the family should be informed of the agreed facts of a case. | Adm |
21. There being no other business, the meeting ended at 12:40pm.
LegCo Secretariat
7 May 1997
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