PLC Paper No. CB(2)156
(These minutes have been
seen by the Administration and
cleared with the Chairman)
Ref : CB2/PL/AJLS
Hong Kong Bar Association
- Mr Lawrence LOK, QC }
- Mr Johannes CHAN } for Items III, IV & V
- Mr Graham HARRIS }
- Mr M K WONG - for Items V & VI
- Law Society of Hong Kong
- Mr Patrick MOSS - for all Items
- Mr Christopher KNIGHT - for Items IV & V
- Legal Aid Services Council
- Mr LEE Jark pui, MBE, JP
- Mrs Elsie TU, CBE
- Mr Anthony CHOW
- Mrs Angela CHEUNG
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
(LegCo Paper No. CB(2) 2636/96-97)
The minutes of the regular meeting held on 12 May 1997 were issued to members vide LegCo Paper No. CB(2) 2636/96-97. No amendment was received and these minutes were confirmed.
II.List of information papers circulated to members of the Panel since the last meeting
2. Members noted the papers circulated to them since the last meeting as listed in the Appendix to the Agenda.
III. The Judicial Service Commission and the Judicial Officers Recommendation Commission
(LegCo Paper Nos. CB(2) 2251/96-97(01), CB(2) 2511/96-97 and CB(2) 2527/96-97)
3. The Chairman reminded members that: (a) the item was only briefly discussed at the last meeting due to the absence of representatives from the Administration and the Hong Kong Bar Association (the Bar); (b) she had written to the Chief Secretary and the Secretary for Justice (Designate) on behalf of the Panel on the item; and (c) their replies of 30 May and 2 June 1997 had been issued vide LegCo Paper Nos CB(2) 2511/96-97 and 2527/96-97 respectively. In response to the Chairmans enquiry, Mr Paul TANG reiterated that the system for the appointment of judges in Hong Kong had been working well and compared favourably with many other common law jurisdictions, where judges were directly appointed by the executive. Ms Emily LAU therefore asked and Mr Johannes CHAN responded that although the power of final appointment of judges in many countries was rested with the executive, such foreign experience had to be considered in their proper context. It may be true that the Attorney General was a member of the equivalent of our judicial service commission in some common law jurisdictions. However, the Attorney General in those jurisdictions, including the United Kingdom, was not a cabinet member and would not be part of the executive policy making body. In contrast, in Hong Kong, the Attorney General was a member of the Executive Council. Mr CHAN added that it was important to consider the whole appointment process and the way the power of appointment was exercised. It was also important in our common law system that the process must be seen to be fair, especially when it was a matter of constitutional convention for the Governor to accept the advice and recommendations of the JSC. The appointment of three members of the Preparatory Committee, which was a political organ, to the JORC would adversely affect the public perception in this respect. Mr Albert HO sought the Bars view as to whether the appointment of judges should be endorsed by the legislature. Mr Johannes CHAN informed members that the Bar had not studied the issue and therefore did not have a position yet. He, however, continued to point out that different system existed. At one end of the spectrum, like many common law systems, the legislature was not involved in the appointment of judges at all. At the other end of the spectrum, such as the United States, there was severe vetting by the Senate on the appointment of judges to the Supreme Court. The advantage of legislative endorsement was that it constituted an express acknowledgement that representatives of the people would take part in this important process; at the same time, some people had regarded that the American system had gone too far and tended to politicize the appointment process. Whether endorsement by the legislature was desirable depended on what power the legislature had in the endorsement (at present it seemed to be rubber-stamping and mere formality only), and the composition and the public perception of the legislature. The Chairman suggested that the issue might be a discussion item in future if considered appropriate.
4. At the invitation of the Chairman, Mr Johannes CHAN briefed members on the Bars submission on the composition of the Judicial Service Commission (JSC) and the Judicial Officers Recommendation Commission (JORC) which had been issued vide LegCo Paper No. CB(2) 2251/96-97. In this connection, the Chairman drew members attention to the Chief Secretarys reply which stated that the Attorney Generals past membership of the JSC had not cast any doubt on the independence of the JSC or the impartiality of its advice to the Governor. Mr CHAN responded that criticisms about the presence of the Attorney General in the JSC had been made in legal literature since 1970s, such as comments made in the Hong Kong Law Journal, on the ground that the Attorney General was an ex-officio member of both the Executive Council and the Legislative Council at that time.
5. Members present shared the concerns expressed by the Bar in its submission that: (a) the Attorney General being an ex-officio member on the Executive Council should not be a member of the JSC and the future JORC; and (b) appointment of political figures would undermine the publics perception of the Judiciary and the future credibility of the JORC. After discussion, members agreed that the Clerk should write on behalf of the Panel to the Secretary for Justice (Designate) attaching relevant minutes on this item and request the future Special Administrative Region Government to pay heed to the views expressed.
IV.Reform of Chambers proceedings
(LegCo Paper Nos. CB(2)2651/96-97(01) and (02))
6. Members noted the Report of the Working Party on Open Justice in the Criminal Jurisdiction and the Report of the Working Party on Civil Proceedings Conducted in Private which had been issued vide LegCo Paper Nos. CB(2)2651/96-97(01) and (02) respectively. At the invitation of the Chairman, Mr Lawrence LOK, who was a member of the Working Party on Open Justice in the Criminal Jurisdiction (the Working Party), highlighted various salient points for members to consider. Mr LOK explained that two major points for discussion during the meetings of the Working Party were how to allow more transparency in judicial proceedings and how to protect the rights of a defendant in criminal proceedings so that he/she would not be subject to abuse by the media. Mr Johannes CHAN then briefed members on the Report of the Working Party on Civil Proceedings Conducted in Private (the Report). Mr CHAN explained that the Working Party on Civil Proceedings Conducted in Private was of the view that: (a) every judicial proceeding was a public matter which should not be held behind closed doors for the sake of expediency; and (b) considerations of the Bill of Rights had to be satisfied if the proceedings were to be held in chambers. The Report therefore recommended a lot of changes to civil proceedings with a view to moving towards openness. Mr CHAN added that the report, on the whole, was to be welcomed, subject to one remark, namely that the reasons given to justify ex parte applications in para 9.17 did not apply to ex parte applications for leave for judicial review - the very nature of such proceedings called for its conduct in open court. In response to the Chairmans enquiry, Mr Patrick MOSS informed members that the Law Society welcomed the two Reports which would be studied by its relevant committees.
7. Ms Emily LAU remarked that greater attention would be given to the right to know by the general public if laymen were included in the relevant Working Parties. Mr Lawrence LOK responded that participation of laymen in the meetings of these Working Parties would be very limited. However, he agreed that inclusion of representatives from the press might be appropriate. In this connection, the Chairman pointed out that bringing up the issue for discussion at the Panel meeting might arouse public awareness and the public views on these Reports would be welcome. As regards the way forward, Mr Martin LEE asked and Mr Lawrence LOK responded that it would be up to the Chief Justice to decide whether practice directions would be issued arising from the Report of the Working Party on Open Justice in the Criminal Jurisdiction. Referring to the Report of the Working Party on Civil Proceedings Conducted in Private, Mr Johannes CHAN explained that legislative proposals, amendments to the Rules of the Supreme Court and issue of practice directions would be required to implement its recommendations.
V. Rules set by Judges for the conduct of court proceedings and the delay in delivering judgements
(LegCo Paper Nos. CB(2)2108/96-97(02) and CB(2)2690/96-97)
8. Members noted the submissions on the rules set by judges for the conduct of court proceedings and the delay in delivering judgements by the Bar and the Law Society which had been issued vide LegCo Paper Nos. CB(2)2108/96-97(02) and CB(2)2690/96-97 respectively. Members further noted that the Law Society endorsed the Bars views in this respect. In response to the Chairman, Mr Christopher KNIGHT expressed concern that the new Practice Direction requiring written arguments would not only increase the cost of litigation but also discourage people from initiating legal proceedings especially those who were not qualified for legal aid. In addition, the case would not have the opportunity to be argued in open court. He opined that there should be a discretion for the judge to decide whether written arguments were always required. Mr Graham HARRIS added that another consequence was that some practitioners would not take up appeal work because it was considered not cost effective to do so due to the huge amount of time involved.
9. Ms Emily LAU asked whether the new Practice Direction had shortened the duration of a trial and thus improved the efficiency in conducting a trial. Mr Christopher KNIGHT responded that such a mandatory requirement of written argument in criminal cases worked to the disadvantage of the clients financially and its disadvantages outweighed the advantages. Mr Johannes CHAN supplemented that the proper criteria in considering the matter should be the quality of justice and not just time and money. It was extremely important for criminal appeals to ensure that justice was not and was not seen to be denied when personal liberty was at stake. Mr Lawrence LOK further pointed out that an appellant might justifiably feel aggrieved if his appeal was dismissed by the appellate court on the basis of his counsels written argument alone without hearing his counsel.
10. Ms Emily LAU expressed disappointment at the absence of representative from the Judiciary for the discussion. At Ms LAUs suggestion, members agreed that the Clerk should write to the Judiciary attaching the relevant minutes in order to relay the views and sentiments expressed at the meeting.
VI.Progress of work of the Legal Aid Services Council
(LegCo Paper Nos. CB(2)2691/96-97 and CB(2) 2729/96-97)
11. Members noted the list of events provided by the Legal Aid Services Council (the Council) which had been issued vide LegCo Paper No. CB(2) 2691/96-97. At the invitation of the Chairman, Mr LEE Jark-pui briefed members on the progress of work of the Council since they last met the Panel on 9 December 1996. Mr LEE informed members that the Council had studied various matters in relation to application and processing procedures. To expedite the process, the Legal Aid Department (the Department) would re-deploy their manpower and replace the Social Welfare Department to conduct the means test. It would give more information to the applicants or prospective applicants so that they would furnish their applications with all the necessary information. The Council had also suggested the Department to set up an internal audit system to monitor the efficiency of the overall provision of legal aid services. Ms Emily LAU asked and Mr LEE said that the Council had not suggested any objective relating to the processing time of applications since the Department was conducting a re-engineering study which would not be completed until the latter part of the year. However, the Department was expected to incorporate the objective into its performance pledge to be issued after the completion of the study.
12. Members noted that a new system of contracting out the briefs had been proposed by the Department and endorsed by the Council. The primary consideration was to serve the interest of the applicant better and to make the system more transparent. The Department would give more information to the Bar and the Law Society and those lawyers on the panel list. The Council had also requested the Departmental Monitoring Committee of the Department to hold more meetings in order to monitor operation of the system closely.
13. As regards the appeal procedures, the Department had agreed with the Councils suggestions that: (a) an appellant could be represented by another person in order to present his/her case better before the Master; and (b) the reason for refusal of application would be given not less than three working days in advance before the hearing. The Council had also requested the Judiciary to increase the manpower of Masters so that appeal cases would be heard more quickly. In this connection, Mr Albert HO suggested the Council to consider that: (a) the appellant should be entitled to any correspondence between the legal aid lawyer and the judge pertaining to the appeal case; and (b) doctors who refused to make their report public should not be employed to give expert advice.
14. Mr LEE Jark-pui then informed members that the Council was going to employ a consultant to conduct a study on the establishment of an independent legal aid authority. In this regard, members noted the paper entitled "Study on an Independent Legal Aid Authority" prepared by the Council for prospective consultants which was tabled at the meeting and subsequently issued to absent members vide LegCo Paper No. CB(2) 2729/96-97. Mr LEE explained that the consultant would be required: (a) to study the operational models, merits and demerits and costs and benefits of the proposed independent legal aid authority; (b) to examine the experience in other common law jurisdictions ; and (c) to gather public responses on an independent legal aid authority. The task was expected to be completed within six months. The Council itself had set up a working party for the purpose. Some members expressed concern that there would be an even longer delay to decide on the question of independence. They expressed dissatisfaction that the Administration had been employing a delaying tactics. Mr Albert HO added that desirability of an independent legal aid authority might be a matter of political decision. He had reservation about entrusting a consultant to gather public responses as the work of a consultant should be concentrated on the technical aspects of the issue. Mr Anthony CHOW pointed out many members of the Council were not from the legal profession and they had to start from scratch to consider the question of independence. The Council had already studied and make recommendations to streamline the procedures of processing applications for legal aid. He said that references to relevant experience in other common law jurisdictions would need to be made in considering the question. In this regard, the Chairman remarked that reference to overseas experience might not have direct application to Hong Kong as the practices in different jurisdictions varied to a great extent. In light of the views expressed, the Chairman urged the Council to put in more effort in order to take the issue of independence forward. The Chairman then thanked representatives of the Council for attending the meeting and wished them very success in their work.
VII.Any Other Business
15. Since it was the last Panel meeting, the Chairman, on behalf of the Panel, thanked representatives of the legal profession and the Administration for their useful contribution to the discussion of the Panel. The Chairman also thanked the Legal Adviser and the Clerk for their services to the Panel.
16. There being no other business, the meeting ended at 6:40 pm.
Provisional Legislative Council Secretariat
29 July 1997
Last Updated on 4 December 1997