LegCo Paper No.CB(2) 376/96-97
(These minutes have been seen
by the Administration)

LegCo Panel on Administration of Justice and Legal Services

Minutes of the Second Meeting held on Friday, 18 October 1996 at 8:30 am in Conference Room A of the Legislative Council Building

Members Present :
    Hon Margaret NG (Chairman)
    Hon Andrew CHENG Kar-foo (Deputy Chairman)
    Hon Martin LEE Chu-ming, QC, JP
    Hon Mrs Miriam LAU Kin-yee, OBE, JP
    Hon Emily LAU Wai-hing
    Hon James TO Kun-sun
    Hon David CHU Yu-lin
    Hon Albert HO Chun-yan
    Hon Ambrose LAU Hon-chuen, JP
Members Absent :
    Hon Ronald Arculli, OBE, JP*
    Hon Eric LI Ka-cheung, OBE, JP*
    Dr Hon Philip WONG Yu-hong*
    Hon Bruce LIU Sing-lee*
Public Officers Attending :
Item No. 3
    Mr Stephen WONG
    Deputy Solicitor General, Attorney General's Chambers (AGC)
    Mrs Emme WALLER
    Senior Assistant Solicitor General, AGC
Item No. 5
Miss Cherry LING
Principal Assistant Secretary (Treasury)C
Mr Philip CHAN
Principal Assistant Secretary (Security)E Attendance by Invitation :
Item No. 4
Mr LEE Jark-pui, MBE, JP
Chairman, Legal Aid Services Council
Mrs Angela CHEUNG
Secretary, Legal Aid Services Council
Mr Anthony CHOW
Council Member, Law Society of Hong Kong
Mr Patrick MOSS
Secretary General, Law Society of Hong Kong Clerk in Attendance :
    Mrs Betty LEUNG
    Chief Assistant Secretary (2) 3
Staff in Attendance :
    Mr Jimmy MA
    Legal Adviser
    Miss Flora TAI
    Senior Assistant Secretary (2) 3

1. Confirmation of minutes of previous meetings and matters arising

The minutes of meeting held on 24 September 1996 had been issued to members vide LegCo Paper No. CB(2) 123/96-97 on 15 October 1996 and the minutes of meeting held on 3 October 1996 had been issued vide LegCo Paper No. CB(2) 146/96-97 on 16 October 1996. No amendment was received and these minutes were taken as confirmed.

Change to terms of reference

2. Members considered the paper prepared by the Secretariat (issued vide LegCo Paper No. CB(2) 153/96-97) on the Chinese term of reference subsequent to the proposed change in English. Mr Martin LEE suggested and members agreed that the second option of the proposed translation of the revised term of reference would be recommended to the House Committee for endorsement.

Constitutional propriety for the Judiciary Administrator to forward members' questions on the Judiciary and communication and relationship with the Judiciary

3. Members noted that the Clerk had written to the Judiciary Administrator on the government legal advice on the "constitutional propriety". Reply was still awaited.

2. Date of next meeting and items for discussion

4. At the suggestion of Mr Martin LEE, members agreed that a special meeting would be held on Saturday, 26 October 1996 at 9:00am to discuss the item of "Use of Chinese in court : the target date and the preparatory work". Members further agreed that representatives of the Attorney General's Chambers, Judiciary Administrator's Office, Administration's Wing of the Chief Secretary's Office, Hong Kong Bar Association and the Law Society of Hong Kong would be invited to attend.Clerk

5. The next regular meeting would be held on Monday, 11 November 1996 at 4:30pm to discuss :

  1. Definition of "fitness to be tried" and "disability" and distinction between an accused person who was not guilty by reason of insanity and an accused person under disability who did the act or made the omission charged;
  2. Staffing proposal of the Legal Department; and
  3. Follow-up on Judge Caird's case.

For agenda item (a), members of the LegCo Panel on Welfare Services would be invited. As the chairman would be out of town on that date, the deputy chairman agreed to chair the meeting.

(Post-meeting note : A paper prepared by the Law Drafting Division of the Legal Department on "Style change - using a schedule for definitions in the legislation" had been referred to the Panel for discussion in its regular meeting in November by the House Committee at its meeting on 18 October 1996.)

3 Briefing by the Attorney General's Chambers on the Fraud Bill and on the Administration of Justice (Miscellaneous Provisions) (No.2) Bill 1996

(LegCo Paper Nos. CB(2) 2212/95-96 and CB(2) 2227/95-96)

Fraud Bill

6. At the invitation of the chairman, Mr Stephen WONG informed the meeting that the problem of fraudulent practice was very serious in Hong Kong, as demonstrated by the result of the survey initiated by the Law Reform Commission in 1995 as well as the statistics obtained from the Commercial Crime Bureau. The Bill therefore sought to create a statutory offence of fraud and to abolish the common law offence of conspiracy to defraud so as to combat fraudulent practice effectively.

7. The chairman asked and Mr WONG explained that there were a number of specific fraud-related offences in the Theft Ordinance. However, these offences did not cover all types of fraud, and they were very complex which created great difficulties in prosecution, particularly if electronic transfer of money was involved. Mr Martin LEE queried that existing legislation might be sufficient to institute prosecution against fraudulent practice and the seriousness of which could be due to the shortage of police manpower only. He expressed concern that creation of the new offence might create greater manpower problem. Mr WONG assured members that the Law Reform Commission was aware of the problems which might have an impact on prosecution. At the requests of the Chairman and Mr LEE, Mr WONG agreed to provide further information on (a) statistics from the Commercial Crime Bureau about the amount of money involved in those fraudulent cases which could not be brought to court because of deficiency in existing legislation; (b) types of fraudulent conduct to be covered by the proposed offence of fraud; and (c) whether such types of conduct could not be dealt with by the existing legislation at all or only technical difficulties in prosecution would be encountered. Mr LEE also urged the Administration to take into account cross-border fraudulent practice in view of the imminent change of sovereignty.

8. Mr James TO referred to para. 9 of the information paper on the Fraud Bill and expressed concern that the scope of the proposed offence of fraud seemed to be very wide. He took the view that the scope of "prejudice" in English or that of " " in Chinese should be delineated clearly to avoid frivolous cases from being taken to court. Mr WONG explained that the Law Reform Commission had already delineated the scope by defining "prejudice" as any financial or proprietary loss, whether temporary or permanent in the Bill. Such an interpretation was based on references to precedent cases related to "dishonesty" and "obtaining property belonging to others by deception".Adm

9. Mr Andrew CHENG referred to the recommendation in para. 9 of the information paper that the new offence of fraud should apply to any person who induced another to commit an act. He was concerned that the new offence would not be able to overcome the difficulty under existing legislation that fraudulent conduct committed by one person acting alone did not constitute an offence unless it fell within the confines of one of the Theft Ordinance offences. Mr WONG confirmed that although the new offence could overcome the anomaly that a fraudulent person acting alone could not be prosecuted, inducement was the necessary element to constitute such an offence. Mr CHENG further asked and Mr WONG agreed to provide information on relevant provisions of the statutory offence of fraud in Canada, Scotland and South Africa for members' reference. Mr Ambrose LAU also expressed concern on (a) whether the term "substantial risk of prejudice" existed in relevant legislation of other jurisdictions; and (b) definition of the term which was a new concept in criminal law.

10. The chairman concluded the discussion by saying that members had no objection in principle to the creation of a new offence of fraud but they were concerned about some definitions used in and presentation of the Bill. Adm

Administration of Justice (Miscellaneous Provisions) (No. 2) Bill 1996

11. At the invitation of the chairman, Mrs E WALLER briefly gave an overview of the Bill which was mainly for minor technical and non-controversial amendments to the laws of Hong Kong. Proposed amendments having a more definite policy content were highlighted in the information paper. Mrs WALLER drew members' attention to the typographical errors in para. 5 and para. 8 of the Chinese translation of the information paper where the word "......." was missing from the term "......".

12. Ms Emily LAU referred to the amendment to section 14 of the Marriage Ordinance and remarked that the position was unclear. She said that whether the amendment would rectify the situation of inequality between men and women was questionable. The chairman shared the concern, She said that the amendment might create conflicts within the family if one of the parents was against the marriage. At their request, Mrs WALLER agreed to provide a copy of the new Third Schedule to the Ordinance which provided a list of circumstances in which consent to a marriage was required. Members indicated that they had no basic objection in principle to the Bill, although they needed to study the amendment to section 14 of the Marriage Ordinance carefully.

4. Meeting the chairman of the Legal Aid Services Council on various matters related to the provision of legal aid service

13. At the invitation of the chairman, Mr LEE Jark-pui informed the meeting that the Legal Aid Services Council (the Council) was formally set up in September 1996 and its first meeting would be held on 22 October 1996. Visit to the Legal Aid Department had been arranged in mid September to familiarise members of the Council with its operation. Members noted that the Council did not have a permanent office yet. In this connection, the chairman informed the meeting that a funding proposal of about $4 million would be considered by the Finance Committee for the annual operation of the Council. However, Mr LEE cautioned that the funding proposal was initially based on the price level in 1994/95. The Council would need to apply for additional funding if resources was found insufficient. Mrs Miriam LAU expressed concern that the running of the Council would be restrained by the Legal Aid Department because of its insufficient resources.

14. In view of the wish of the public and the LegCo's members for an independent Council which had been expressed repeatedly, Ms Emily LAU asked (a) whether the Council had any timetable to advise on the feasibility and desirability of the establishment of an independent legal aid authority; and (b) how the Council would operate under its existing terms of reference to perform its functions effectively. Mr LEE Jark-pui responded that independence of the Council was an important issue which would require detailed study and consideration. The Council was still designing a programme of work. Its immediate task would be to collect more information about legal aid and to perform the statutory functions in accordance with the existing legislation. Since the Council was responsible for overseeing the administration of the legal aid services provided by the Legal Aid Department, Mr LEE Jark-pui personally envisaged that an overview of its operation would be conducted in order to monitor and improve the quality of legal aid services. However, the Council would concentrate in playing an advisory role in policy matters. In this regard, Mr Martin LEE expressed dissatisfaction that the Administration was very passive on the matter. Members in general urged that the Council should take the initiative to strive for its own independence. The chairman added that LegCo would also closely monitor how the Council had fulfilled its statutory functions.

15. Mr Albert HO asked (a) whether the Council would participate in setting the second Performance Pledge of the Legal Aid Department and (b) whether it would advise on any proposed eligibility criteria before submission to the LegCo. Mr LEE Jark-pui responded that the Administration had not formally approached the Council for advice on these two matters yet and they might be brought up at the first meeting of the Council. Mr Andrew CHENG also suggested that the Council should put in more effort in publicity so that the general public would forward their opinion or complaint about legal aid services to the Council.

16. As regards the transparency of statutory bodies, Mr Albert HO, supported by Ms Emily LAU, was of the view that the Council should (a) hold open meeting; (b) provide agenda, minutes and brief to the public for closed meeting; and (c) report on its progress of work regularly to the public. Mr LEE Jark-pui pointed out that the issue of transparency would be discussed at the first meeting in the Council. He explained that the Council had not decided on the issue and yet he personally did not object to holding the meeting in public on the condition that the meeting would not be disturbed.

17. Mrs Miriam LAU asked and Mr LEE Jark-pui said that meeting of the Council might be held monthly or bi-monthly, depending on the availability of information paper from Legal Aid Department. However, Mr Martin LEE urged that meeting should be held at least once a month at the early stage of the Council. Ms Emily LAU said that she was very interested in issues such as fairness of the system for briefing out assignments to private legal practitioner, listing arrangement and review of financial eligibility of legal aid applicants. She suggested that the Council should meet the Panel again in the near future. Members agreed that the Panel would meet representatives of the Council again at the Panel meeting in December to discuss its progress of work. At Ms LAU's suggestion, Mr LEE Jark-pui agreed to notify the Panel if it was decided that the meeting of the Council would be held in public.Clerk

18. The chairman invited and Mr Anthony CHOW said that the Law Society shared members' concern on issues relating to independence and transparency of the Council. It also recognised the need to publicise the Council. He assured members that the Law Society would take the initiative to bring up these issues for discussion.

5. The Administration's stance and deliberations on the mechanism and criteria for granting compensation in the future and on the need to retain section 18A of the Public Finance Ordinance

(LegCo Paper Nos. CB(2) 2217/95-96 & CB(2) 127/96-97)

19. Mr Andrew CHENG asked whether it was the policy intention of the Administration not to invoke section 18A of the Public Finance Ordinance in future cases which were of similar nature to Mr YEUNG Hoi-keung's case, to avoid any interference from LegCo, despite the fact that the relevant provision had been invoked with participation of the LegCo in the past. Miss Cherry LING responded that all cases in which provision same as section 18A had been invoked had taken place before the enactment of the Public Finance Ordinance. She added that the Administration had reviewed the continued need of the provision and would consider seeking to repeal it at an appropriate time. The chairman therefore asked and Miss LING explained that it would be difficult to be precise on timing as other factors had to be taken into account such as the legislative programme of the Government as a whole and the relative urgency of the proposed bills. The chairman referred to the fact that the Public Finance Ordinance was amended in 1989 which could be taken to imply that section 18A was considered necessary to be retained at that time. Miss LING explained that the amendments made in 1989 were technical in nature only.

20. Miss Cherry LING said that the objective of section 18A was to provide an enabling measure for the award of compensation to a person injured or to the dependants of a person killed in fulfilling a duty to uphold the law. The Administration considered that such an objective could be fulfilled by normal Estimates procedures under the Public Finance Ordinance. Mr Albert HO asked and Miss LING explained that the scope of ex-gratia payments made under Head 106 Miscellaneous Services Subhead 284 - Compensation could be very broad. When considering whether to grant an award and if so, the amount, the Administration would need to consider possible impact on other cases. A policy branch would make a recommendation to the Finance Branch for an award of ex-gratia payment. The Finance Branch would seek legal advice, draw reference from similar precedent cases and consult relevant branches and departments. The chairman remarked that the term of "compensation" used in the Estimates was very general, and for unique cases similar to Mr YEUNG Hoi-keung's, a specific provision was needed. In this connection, Mr Andrew CHENG expressed strong dissatisfaction at the Administration's intention to repeal such a provision. He considered it a degeneration of the representative government because members of the LegCo were deprived of the opportunity to participate in the process of determining the amount of ex-gratia payment. Miss LING said that members' wish to participate in this respect would be taken into account. In this regard, Mr Philip CHAN added that in response to members' request the Administration had already provided a detailed breakdown of the ex-gratia payment for Mr YEUNG Hoi-keung. After discussion, the chairman, noting members' preference for involvement, suggested that the Administration should consider ways to involve LegCo Members in its deliberation on grant of ex-gratia award to persons within the coverage of section 18A of the Public Finance Ordinance.

6. Any other business

21. Members agreed that future meetings should be held in Conference Room B if possible.Clerk

22. There being no other business, the meeting ended at 10:45 am.
LegCo Secretariat
5 November 1996

*-- other commitments

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