Speech by the Secretary for Justice, Miss Elsie Leung Oi-sie, at the Ceremonial Opening of the Legal Year
Chief Justice, Ladies and Gentlemen,
I am honoured to stand before you as the first Secretary for Justice of the Hong Kong Special Administrative Region at this, the first, Ceremonial Opening of the Legal Year since the handover. I am also pleased to report that the resumption of sovereignty was achieved with a completely smooth transition of the legal system.
Today's ceremony is visible evidence of the continuity of Hong Kong's legal traditions. It symbolises the continuity that has been achieved in the substance and operation of our legal system. Almost all the Ordinances that were in force before the handover have been adopted as laws of the SAR. In July of this year, the Court of Appeal confirmed that the common law continues to apply after the handover. So far as the operation of the legal system is concerned, the Hong Kong Reunification Ordinance (enacted on 1 July this year) ensured that court proceedings and the administration of justice could straddle the handover; that the Ordinances previously in force are construed in a way that does not contravene the Basic Law; and that there is continuity of the public service.
The smooth transition of the legal system would not have been possible without far-sighted planning and meticulous preparation. I wish to pay tribute to the last Attorney General, Mr Jeremy Mathews, for all that he did in this respect. The success of his work is evident for all to see.
Most important of all, the rule of law continues to be the cornerstone of our legal system. I wish to place on record, yet again, the Administration's unwavering commitment to the rule of law in all that it does.
Implementing the Basic Law
The Administration is also committed to the faithful implementation of the Basic Law. My department is well-prepared to play a key role in this respect. Through the Basic Law Unit, it provides legal advice to government bureaux and departments to ensure that their policies and legislative proposals are consistent with the Basic Law. It is preparing textual amendments to the laws previously in force to bring them into line with the Basic Law, and with Hong Kong's new status as a Special Administrative Region of the PRC. It provides training within the civil service in respect of the Basic Law, and assists with the Administration's arrangements for promoting greater understanding of the Basic Law in the wider community of Hong Kong. And, through the Basic Law Litigation Taskforce, it is ready to meet any challenges, based on the Basic Law, that may arise in the courts.
The fact that such challenges can, and have arisen, is a healthy sign. It shows that the rule of law is observed in Hong Kong; that constitutional issues can be justly and efficiently dealt with by the independent Judiciary; and that the Basic Law contains rights and obligations that are fully justiciable. As more constitutional cases are decided by the courts, an authoritative body of jurisprudence will develop which will clarify important articles of the Basic Law, and give guidance on the proper approach to interpretation. This body of jurisprudence will strengthen our new constitution, and help the SAR to move forward confidently.
The principle of 'one country, two systems' will work best if lawyers in each jurisdiction understand the legal system operating in the other jurisdiction. Members of my department play a leading role in the development of such mutual understanding. We conduct regular briefings on Hong Kong's legal system for visiting academics, lawyers and government officials from the Mainland; from time to time senior members of my department and I visit our counterparts in the Mainland and exchange information on the two systems; and selected members of my department attend courses in the Mainland to better understand mainland laws and legal system. I am confident that these arrangements will bear fruit in the years to come, particularly in respect of mutual legal assistance.
Promoting international awareness
Looking further afield, it is essential that the international community becomes aware of the integrity, strength and vibrancy of our legal system. There exist overseas many misconceptions about Hong Kong after the handover. My department is actively dispelling these misconceptions in various ways. It regularly provides briefings for consular corps, visiting politicians, businessmen, lawyers and journalists. The Solicitor General has undertaken a number of extensive and highly successful speaking engagements with influential groups in the United States, the United Kingdom and elsewhere. And, by recently making the laws of Hong Kong accessible, free of charge, on the Internet, we are enabling people all over the world to see for themselves both the content of our laws, and the transparency with which we operate.
I am confident that these efforts will pay off, and that a better understanding of our legal system will develop overseas. This will be enhanced by the creation within the International Law Division, of a Mutual Legal Assistance Unit, to which I shall refer in a moment.
Bilingual legal system
In recent years, the Chinese language has enjoyed wider use in the legal system. The process has wisely been gradual and controlled. The position now is that all the Ordinances and subsidiary legislation of the SAR are bilingual, and the courts at all levels are able to conduct proceedings in the Chinese language. However, much more needs to be done to ensure that our legal system develops into a fully bilingual system.
The Administration has responded to suggestions made by some members of the profession that there should be a high-powered committee to oversee developments in this area. I am pleased to announce the imminent formation of the Committee on Bilingual Legal System, which I will have the honour to chair. The other members of the committee are representatives of the Judiciary, Law Society, Bar Association, Legal Aid Department, Education and Manpower Bureau, Commissioner for Official Languages, and my department; and not more than three lay members to be appointed by the Chief Executive.
The terms of reference of the committee are to advise the Government -
on a clear statement of the policy and long-term goal of bilingualism in law;
on how the long-term goal should be attained;
on how the efforts of the Judiciary, various departments, professional bodies and academic institutions can be co-ordinated to enhance the efficiency and effectiveness of bilingualism in law, and to avoid repetition of efforts, if any;
on how the interests of users of legal services can be best served; and
on the resources required for implementing the goal with respect to bilingualism in law.
I believe that this committee will make a major contribution to the long-term development of our legal system, and I look forward to working with the other members in order to provide clear-sighted and co-ordinated advice in this vital area.
In addition to participating in the work of this new committee, my department will be taking other practical steps in respect of the use of Chinese. It will be conducting a training programme for prosecutors to assist them to present a case in Chinese. It will form a dedicated team to assist in translating, into Chinese, contracts, tenders and court documents relating to civil proceedings. And it will be producing the third edition of the English-Chinese Glossary of Legal Terms, and the first edition of a Chinese-English Glossary of Legal Terms.
I would add that the Laws of the SAR, which are now accessible on the Internet, are available in both English and Chinese. This means that any member of the community with a computer that has the Internet and Chinese Windows can read any of our Ordinances and subsidiary legislation in the Chinese language. This is a remarkable improvement on the position ten years ago - when the laws were published only in the English language, and were publicly accessible in only a few places.
I am sure that these developments will be welcomed by the public, and will help the laws of Hong Kong to take deeper root in the community. This can only be for the good of Hong Kong.
Before the handover, it was a fundamental principle that the decision whether or not to prosecute any person was the responsibility of the Attorney General alone; and, in making that decision, the Attorney General would act independently, and in no way subject to political, or other, pressure. Since the handover, that fundamental principle continues to apply. Article 63 of the Basic Law states unequivocally that the Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from interference. I can assure you that my Department has complied, and will comply, with the Basic Law in this respect.
As you know, a new Director of Public Prosecutions, Mr Grenville Cross, SC, was recently appointed to succeed Mr Peter Nguyen, SC. I would like to thank Mr Nguyen for all that he did for the department and to wish him well in his new career on the bench. Mr Cross has all the experience, knowledge and skills needed for this demanding post. We are introducing a series of improvements in the Prosecutions Division. These include the institution of in-house advocacy training seminars to raise standards, the sending of counsel on overseas advocacy courses, the comprehensive updating of the prosecutions manual which guides prosecuting counsel, a greater role for experienced prosecutors in front-line advocacy, and a revamp of the support systems available to prosecutors. We are also arranging for the booklet on prosecution policy to be revised and re-issued, so that the community can have a better understanding of an important aspect of the rule of law, namely, the policy and the criteria involved in the making of prosecution decisions. These initiatives reflect my commitment to improve, to modernise, and to maintain standards, and thereby to promote a prosecution service which is independent, efficient and just.
Insider Dealing Tribunal
As you all know, Hong Kong is an international financial centre, and the Administration is determined to ensure a level playing field for all investors in the Hong Kong market. With this in mind, the Insider Dealing Tribunal was reorganised in 1994. Since then, the tribunal has completed five insider dealing enquiries and is currently dealing with four other cases. There is a rising demand for the Administration and the tribunal to act swiftly on suspected insider dealing cases.
The Civil Division of my department has been providing pre-enquiry legal advice on the merits of cases referred to it by the Securities and Futures Commission, as well as providing counsel during the inquiring process. Until recently, these services were provided by counsel who had many other duties to perform, and this stretched our resources. We have now improved matters, by creating three new posts that will be dedicated to work relating to the Insider Dealing Tribunal. This strengthens the support provided for the tribunal, and underscores the Administration's commitment to maintaining a market-place which is open and fair to local and international investors, and to market operators.
Another improvement that is taking place in my department is the creation of a Mutual Legal Assistance Unit. In the past, several units have undertaken different aspects of mutual legal assistance work, which up to now has consisted mainly of co-operation with other jurisdictions over extradition, the recovery of the proceeds of crime, the taking of evidence, the transfer of prisoners, and conducting negotiations for bilateral agreements on these subjects. This distribution of responsibilities is unsatisfactory, since it is difficult for there to be any overall supervision, co-ordination and direction of this important work. In addition, there has been, and will continue to be, an increase in the volume of this work.
We are tackling this situation by creating, within the International Law Division, a new Mutual Legal Assistance unit. This will be headed by the holder of a new post at the Deputy Law Officer level. The new unit will soon be fully functional and I am confident that it will improve the quality of the services we render in this area. It will also demonstrate our commitment to providing full and effective co-operation in the international battle against crime.
I am also pleased to report progress in a related area, namely that of bilateral international agreements. With the approval of the Central People's Government, a number of bilateral agreements have already been concluded. These include 22 air services agreements, 13 investment promotion and protection agreements, 10 surrender of fugitive offenders agreements, and 3 mutual legal assistance agreements. Negotiations are continuing, several of them at an advanced stage, with additional partners in order that a reasonably comprehensive framework of bilateral agreements can soon be in place.
The First Step
Understandably, pending the handover, decisions on a number of matters were held in abeyance. During the past six months, much efforts have been made within the Department, and with other departments, the legal profession, the Provisional Legislative Council and community leaders to build up a cordial working relationship and to strengthen mutual trust and cooperation which are so important to the success of the Special Administrative Region. In giving an account of the work undertaken by this Department, I do not by any means attempt to understate the problems and difficulties that we meet in almost every area. But the important thing is this: we face these challenges, problems and difficulties and are committed to resolve them and strive for improvement. All Law Officers have displayed such determination and leadership in pursuit of the work of their respective Divisions that I have full confidence that our Performance Pledges will be met. Now that we have a Director of Administration and Development within the Department, we can not only develop our current resources and plans, but also collectively shape our vision for the 21st Century.
Into the 21st Century
24. Chief Justice, I would like to conclude by emphasising that, as we move towards the 21st century, my department is fully prepared to meet the challenges that lie ahead. In particular, I and the Law Officers are confident of achieving -
improved standards of service in all divisions of my Department;
improvements in mutual legal assistance with the Mainland;
an increased mutual understanding of the two legal systems within the People's Republic of China;
an increased understanding of the SAR's legal system in other countries;
an increased capacity to conduct litigation and prosecutions in the Chinese language;
the completion of the adaptation of laws project, so that the texts of all Ordinances are consistent with the Basic Law, and
the conclusion of further bilateral international agreements.
25. After an excellent beginning, the SAR's legal system will, I am sure, grow from strength to strength.
26. Thank you.