Madam President,

I move that the Legal Practitioners (Amendment) Bill 1998 be read the second time. The main purpose of the Bill is to establish a system of locally-appointed notaries.

Since 1 July 1997, it has not been possible to appoint notaries public in Hong Kong. The previous system of appointment by the Archbishop of Canterbury came to an end on 1 July 1997 as a result of the transition. Section 14 of the Hong Kong Reunification Ordinance has enabled notaries public appointed prior to 1 July 1997 to continue in such a capacity with all their previous powers. However, since the handover, it has not been possible to appoint new notaries.

A Bill to provide a local system for appointing notaries was introduced into the Legislative Council in February 1996. That Bill (the Legal Practitioners (Amendment) Bill 1996) was withdrawn after the carriage of a Committee Stage Amendment requiring notaries public to be members of the Hong Kong Society of Notaries.

A review was subsequently conducted by the Administration of the proposed system of appointing and regulating notaries public. We consider that the best way forward is to establish some form of self-regulatory system for notaries public, similar to that of the two other legal professional bodies.

The current Bill introduces a new Part IV to the Legal Practitioners Ordinance. The main features of that new Part are as follows.

The Appointing Authority

First, the appointing authority. It is considered important that notaries should be appointed by an office bearer who would be respected by the international community. The Bill therefore follows the approach of the 1996 Bill by providing that the Chief Justice shall be the appointing authority. New section 40A empowers the Chief Justice to appoint solicitors admitted in Hong Kong, who are of at least 7 years' standing and who have passed a notarial examination, to be notaries public in Hong Kong.

Membership of Hong Kong Society of Notaries and its role

The second feature concerns membership of the Hong Kong Society of Notaries. The Administration considers that, if the law requires notaries to be members of the Hong Kong Society of Notaries but does not give the Hong Kong Society of Notaries a regulatory role in respect of them, this compulsory membership will probably infringe the notary's right to freedom of association under Article 22 of the International Covenant on Civil and Political Rights. It therefore proposes to give to the Hong Kong Society of Notaries a regulatory role that is similar to that of the Law Society and Bar Association.

The Legal Practitioners Ordinance does not expressly require barristers and solicitors to be members of the respective professional bodies. It does, however, require all practising barristers and solicitors to have a practising certificate issued by the professional body, and provides that a practising certificate shall not be issued unless the barrister or solicitor has paid to the professional body the membership subscription in respect of the year for which the practising certificate is to be issued. The effect of these provisions is that membership of the relevant professional body is compulsory for all practising barristers and solicitors.

It is proposed that the Bill should follow this approach and provide that the membership of the Hong Kong Society of Notaries is compulsory for practising notaries and optional for non-practising notaries.

It is noted that in England and Wales, only those notaries who do not have a solicitor's practising certificate need take out a practising certificate for practising as a notary. Those with a practising certificate as a solicitor need only present the certificate to the Master of Faculties for registration. We consider that this practice has its merits and should be adopted in our new system. We propose that a practising certificate may be dispensed with where the notary public is a holder of practising certificate issued by the Law Society, but membership of the Hong Kong Society of Notaries will remain compulsory. We also propose that a certificate of membership will be issued to members so exempted.

Regulation and Discipline

Thirdly, regulation and discipline. The provisions for regulation and discipline now proposed are along the lines of those for solicitors in the Legal Practitioners Ordinance. Under the Bill, the Chief Justice will appoint a Notaries Public Disciplinary Tribunal Panel from which the Notaries Public Disciplinary Tribunal is to be set up in accordance with the regulatory framework laid down under the new sections 40F to 40R. This will address the human rights concern mentioned above, by rendering the restrictions on notaries' freedom of association justifiable.

Rules and Regulations

Fourthly, rules and regulations. Following the approach of the Legal Practitioners Ordinance in respect of solicitors, new sections 73D and 73E empower the Council of the Hong Kong Society of Notaries, subject to the consent of the Chief Justice, to make rules relating to the practice, conduct and discipline of notaries public and their employees, and rules concerning indemnity against loss arising from claims in respect of civil liability incurred in connection with a notary public's practice.

Transitional

Finally, transitional arrangements are also provided for to ensure that the new Part IV applies to a notary public who, before the commencement of the new Part, was already registered as a notary public under the old Part.

Madam President, the Bill seeks to establish a system of locally appointed notaries so as to ensure that sufficient qualified notaries will be available for service in the SAR. It is in line with the amendments suggested by the Bills Committee of the last Legislative Council. The Hong Kong Society of Notaries, the Law Society and the Bar Association have been consulted and they support the Bill in principle. I commend this Bill to Members for early passage into law.