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Following is the speech by the Secretary for Justice, Ms Elsie Leung, in moving the second reading of the Statute Law (Miscellaneous Provisions) Bill 2001 in the Legislative Council today (July 4):
Madam President,
I move that the Statute Law (Miscellaneous Provisions) Bill 2001 be read the second time.
The Bill is part of the ongoing process of statute law reform directed at repealing obsolete statutory provisions, removing anomalies and inconsistencies in legislation, and making a variety of minor improvements which do not justify the introduction of separate bills. The Bill follows the pattern of previous bills to effect minor improvements to our laws.
Marital rape
I will deal first with marital rape. In May 2000, members of this Council's Panel on Administration of Justice and Legal Services suggested that the Crimes Ordinance should be amended to make it clear that marital rape is an offence. Their concern arose because the expression "unlawful sexual intercourse", which appears in the offence of rape, might still mean intercourse outside the bounds of matrimony.
The Administration is of the view that, following the decision of the House of Lords in Reg v R in 1991, the offence of rape does apply within a marriage if, in the circumstances of the case, the wife does not consent to sexual intercourse. However, we nevertheless see an advantage in making this clear in the statutory provision itself. Clauses 11 to 17 of the Bill therefore propose amendments to relevant provisions in the Crimes Ordinance.
Costs
Two amendments are proposed in respect of the power to award costs.
The Appeal Committee of the Hong Kong Court of Final Appeal hears and determines applications for leave to appeal to the Court. At present, it has no jurisdiction to award costs. However, when such an application is dismissed, it may be unfair for the respondent to have to bear what may be substantial legal costs. Amendments are therefore proposed to empower the Appeal Committee to award costs when applications for appeal are dismissed.
The Costs in Criminal Cases Ordinance (Cap. 492) was enacted in 1997 to provide for costs in criminal cases. However, where there is an appeal by way of case stated against a verdict or order of acquittal made by the District Court, the Ordinance does not empower the Court of Appeal to award costs. It would be an improvement if the court could award costs to the prosecution if the case stated appeal is successful, or to the defendant if that appeal is unsuccessful. The Bill so provides.
Applications for bail by fugitives
I turn now to applications for bail by fugitive offenders. These applications may be considered by a magistrate, a District Judge or a Judge of the Court of First Instance. However, section 10(5) of the Fugitive Offenders Ordinance, which deals with such applications, does not currently apply to the Court of First Instance. It is clearly desirable that there should be a consistent approach to deciding bail applications in fugitive offender cases at all levels of the courts. Amendments are proposed to achieve this.
Refund of deposits
As Members will be aware, it is normal for deposits to be paid under a sale and purchase agreement of property. Where a transaction breaks down due to a breach by the purchaser, the vendor is normally entitled to forfeit the deposit. Comments made by a senior judge in a 1999 case prompted the Administration to consider whether the court should have a discretion to order a refund of the deposit to a purchaser where he is not at fault, for example where his breach is technical or trivial. Such a discretionary power is available in the UK and in New South Wales, Australia. The guidelines for the exercise of the discretion established by case law include the nature of the breach by the purchaser, the conduct of both the purchaser and the vendor, and all other circumstances of the case.
The two branches of the legal profession, the Real Estate Developers Association of Hong Kong, the Consumer Council, The Conveyancing & Property Law Association Limited of Hong Kong, the Law Faculty of the Hong Kong University and the School of Law of the City University were consulted on the proposal. The matter was also discussed in the Panel for Administration for Justice and Legal Services. Although differing views were expressed on the issue, the Administration considers that, in order that justice may be done in exceptional cases, the court should have a discretion to order a refund of a deposit. Clause 19 therefore proposes to amend section 12 of the Conveyancing and Property Ordinance to give the court such a discretionary power.
"Non-immunity" clauses
The Bill also proposes to amend what are known as "non-immunity" clauses in 15 Ordinances. A "non-immunity" clause is normally included in Ordinances establishing a corporation or other body which is empowered to perform public or semi-public functions but which is intended to operate independently of the Government. The "non-immunity" clause makes it clear that the body is independent and ensures that it is treated in law as an ordinary private body. Those clauses enacted before Reunification provided that the relevant body was not an agent of the "Crown". Those clauses are to be amended so that the relevant body is not an agent of the government. The wording of the amendment reflects discussions with members of this Council during the last Legislative session.
Legal Practitioners Ordinance
The Bill contains a number of amendments to the Legal Practitioners Ordinance proposed by the Law Society. Under the present law, there is no mechanism for dealing with minor disciplinary offences by solicitors. Either full scale Solicitors Disciplinary Tribunal hearings must be convened and completed, which is time-consuming and costly for all parties, or the Law Society Council may issue a sanction-less letter of censure, which in practice has had very little deterrent effect. The Bill introduces a system under which fines may be imposed by the Law Society upon solicitors who plead guilty to certain disciplinary offences, without the need for a full hearing. The proposed system is both time and cost effective, and will help to improve standards within the profession.
At present, the Chief Justice is empowered under the Legal Practitioners Ordinance to make rules for the issue of practising certificates to solicitors. If the Law Society, instead of the Chief Justice, had this power, it would be able to react swiftly to undesirable developments in legal practice, by imposing appropriate restrictions upon the practice of particular solicitors. This would be in the public interest and in the interests of the profession. The Chief Justice has therefore agreed to transfer his powers in this respect to the Council of the Law Society. However, any rules made by the Council will be subject to the Chief Justice's prior approval under section 73(2) of the Ordinance.
It is also proposed that some appeals against decisions of the Law Society, which now lie to the Chief Justice, should instead go to the Chief Judge of the High Court.
Finally it is proposed that the Chief Judge, instead of the Chief Justice, may, where a complaint against the conduct of a barrister is made to the Bar Council and the Bar Council does not submit the matter to the Tribunal Convenor of the Barristers Disciplinary Tribunal within the stipulated time for doing so, on application by any person or on his own initiative, submit the matter to the Tribunal Convenor if he is of the view that the Bar Council ought to have done so. In such a case, the Chief Judge may also make an application to the Barristers Disciplinary Tribunal to inquire into other conduct of the person being complained against.
Other Amendments
Other amendments in the Bill have the following purposes -
* to repeal legislative provisions relating to the former Kai Tak Airport;
* to make amendments consequential to the repeal of certain provisions in the Magistrates Ordinance and Criminal Procedure Ordinance;
* to update the Administrative Appeals Board Ordinance in respect of additional appeals that lie to it;
* to widen the functions of the Hong Kong Examinations Authority to cover the administration of 'assessments' as well as examinations;
* to change the nomenclature of the executive heads or officers of some tertiary institutions, and to improve the procedures for appointment and terms of office of their Council members; and
* to make minor amendments to numerous Ordinances to ensure consistency in terminology and in the Chinese and English texts, to reflect changes in titles, and to reflect transfer of responsibilities as between bureaux.
As I indicated earlier, this Bill is part of a continuing process of tidying up Hong Kong's statute law and effecting minor reforms.
Madam President, I commend the Bill to the Council.
End/Wednesday, July 4, 2001
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