LC Paper No. LS82/98-99

When we reported on the Legal Practitioners (Fees) (Amendment) Rule 1998 to the House Committee meeting on 4 December 1998, we indicated that we were seeking clarification from the Judiciary Administrator on whether the amending rule was properly made by the Chief Justice under section 72 of the Legal Practitioners Ordinance (Cap. 159). This is because section 30(1) and (4) of the Ordinance seems to have empowered the Bar Council to make such a rule.

2. In her reply, the Judiciary Administrator takes the view that the Chief Justice is empowered under section 72 to make rules to prescribe the fees payable for the issue of practising certificates for barristers and that section 72 is the proper empowering section instead of section 30(4).

3. Comments have also been received from the Hon Secretary of the Bar Association, who takes a similar view.

4. Having carefully considered those views, the plain meaning of section 30(1) and (4) and the legislative intent of the section, we are inclined to think that the power of the Chief Justice to make such rules under section 72 has been displaced since 1991, when the Bar Council was specifically empowered to make such rules.

5. Prior to the Legal Practitioners (Amendment) Ordinance 1991 (70 of 1991) (the amending ordinance), practising certificates for barristers were issued by the Registrar of the Supreme Court and the fees paid went to general revenue, which was why the Chief Justice was then empowered under section 72 of the principal ordinance to make rules regulating their fees.

6. This was subsequently changed by the amending ordinance, which substituted the Bar Council for the Registrar in section 30(1), making the Bar Council responsible for issuing the practising certificates and prescribing their fees. At the same time, a new section 30(4) was added to specifically empower the Bar Council to make rules, subject to the prior approval of the Chief Justice, to regulate, among other things, the fees payable for the practising certificates. Section 72 was not amended.

7. In the LegCo Brief issued by the then Attorney General's Chambers on 8 May 1991, it was stated in paragraph 10 that -

"The Bar Association wishes similarly to issue its own certificates and retain the revenue. Practising certificates will only be issued to members of the Bar Association, which is similar to the restriction imposed by the Law Society. With control over the issuance of practising certificates the Bar will be seen to be independent and self-regulating."

8. We regard the prescribing of fees as part and parcel of the issuance of practising certificates. The retention by the Chief Justice of his power to make rules to regulate the fees of the practising certificates under section 72, which gives no role at all to the Bar Council, would appear to be contrary to that intention and for this reason, may have been displaced by the new power given to the Bar Council in that respect.

9. Copies of our correspondence with the Judiciary Administrator and the Bar Council, the relevant sections of the principal ordinance and the relevant LegCo Brief (without the Annex) are attached.

10. Members are requested to note our views on the proper authority for prescribing fees for the issuance of practising certificates for barristers by way of subsidiary legislation and to consider the way forward.


Prepared by

CHEUNG Ping-Kam, Arthur
Assistant Legal Adviser
Legislative Council Secretariat
16 December 1998

Encl.


LS/S/19/98-99
2869 9283
2877 5029

By Fax (2530 2648) and By Post
27 November 1998

Ms A Tai, JP
Judiciary Administrator
Room 123, G/F
High Court Building
33 Queensway Road
Hong Kong

Dear Madam,

I refer to the subject Rule, which was made by the Chief Justice under section 72 of the Legal Practitioners Ordinance (Cap. 159) and gazetted as L.N. 359 of 1998 on 27 November 1998.

Notwithstanding that the fees for the practising certificate of barristers are now prescribed under the same section, it is noted that section 30(4) of the Legal Practitioners Ordinance (Cap. 159) specifically empowers the Bar Council, subject to the prior approval of the Chief Justice, to make rules regulating such fees.

I would therefore be grateful for your clarification on :-

1. whether section 30(4) should be the proper empowering provision; and
   
   
2. whether section 72 is applicable to those fees, in view of section 30(1) and (4), which expressly provides that those fees are to be prescribed, and regulated by rules made, by the Bar Council and if not, whether that would affect the validity of the fees and any revision thereof.

Your reply as soon as possible would be appreciated to allow time for Members' attention to be drawn to the matter within the time frame of section 34 of the Interpretation and General Clauses Ordinance (Cap. 1), if necessary.

Yours faithfully,


(Arthur CHEUNG)
Assistant Legal Adviser

c.c. Bar Council


LS/S/19/98-99
2869 9283
2877 5029

By Fax (2530 2648) and By Post

8 December 1998

Ms A Tai, JP
Judiciary Administrator
Room 123, G/F
High Court Building
33 Queensway Road
Hong Kong


Dear Madam,

I would be grateful if you would let me have a response to my letter of 27 November 1998 by close of play on 10 December 1998 as a decision will have to be made on whether any action need to be taken to extend the scrutiny period in relation to the subject Rule by 11 December 1998.

Yours faithfully,


(Arthur CHEUNG)
Assistant Legal Adviser

c.c. Bar Council

LS/S/19/98-99
2869 9283
2877 5029

By Fax (2123 0028) and By Post

11 December 1998

Miss Susie HO,
Deputy Judiciary Administrator (D)
Court of Final Appeal
No. 1 Battery Path
Central
Hong Kong

Dear Miss Ho,

Thank you for your letter of 10 December 1998.

I would be grateful for your further clarification on the following points in your letter -

1. what the statement "S72 is the proper empowering section instead of s30(4)" seems to be saying is that section 30(4) is not a proper empowering provision for making rules to determine the fees payable for the practising certificates. If that is what is meant, could you explain why section 30(4), despite the clear wording of that subsection and section 30(1), cannot be properly used as an empowering provision to make such rules. If not, could you clarify what it actually means with regard to the status of section 30(4) as such an empowering provision;
   
   
2. it is also stated that section 30(4) is "consistent with" section 72 by requiring the prior approval of the Chief Justice. Could you explain how section 30(4), in requiring the prior approval of the Chief Justice of the rules made by the Bar Council to regulate the fees for practising certificates, could be regarded as consistent with section 72, which gives the rule making power instead to the Chief Justice and no role at all to the Bar Council.

It is noted that prior to the Legal Practitioners (Amendment) Ordinance 1991 (70 of 1991) (the amending ordinance), practising certificates for barristers were issued by the Registrar of the Supreme Court and the proceeds went to general revenue, which was why the Chief Justice was then empowered to make rules regulating their fees.

This was changed by the amending ordinance, which substituted Bar Council for the Registrar in section 30(1), making the Bar Council responsible for issuing the practising certificates and prescribing their fees. At the same time, a new section 30(4) was added to specifically empower the Bar Council to make rules to regulate, among other things, the fees payable for the practising certificates. Section 72 was not amended.

In the LegCo Brief issued by the then Attorney General's Chambers on 8 May 1991, it was stated in paragraph 10 that -

"The Bar Association wishes similarly to issue its own certificates and retain the revenue. Practising certificates will only be issued to members of the Bar Association, which is similar to the restriction imposed by the Law Society. With control over the issuance of practising certificates the Bar will be seen to be independent and self-regulating."

You may wish therefore to consider whether, given the clear intent of the 1991 amendments and the very clear wording of section 30(1) and (4), the power of the Chief Justice to make rules prescribing the fees of the practising certificates, has been displaced.

I would be grateful if you could let me have your response by close of play on 15 December 1998 so that a report incorporating your views may be made in time to Members.

Yours sincerely,


(Arthur CHEUNG)
Assistant Legal Adviser

c.c. Bar Council