Feature Article 2 - Implementation of the Reports published by the Law Reform Commission for Subjects within the Department of Justice’s Policy Portfolio

Feature Article 2

Law reform plays an important role in any society which aspires to uphold the rule of law. As our society evolves, so too must our laws to keep pace with changing social needs. The Law Reform Commission (LRC) of Hong Kong was established in 1980 as an independent body to keep our laws under review. The primary objective of any LRC project is to present well-considered proposals for improving our law. LRC reports are generally the result of a highly detailed study by a sub-committee of experts in the field and involve extensive public consultation.

Within the Department of Justice, the Legal Policy Division has the role of considering and, if appropriate, implementing the recommendations made in the reports published by the LRC on subjects falling within the policy portfolio of the Department. This includes subjects concerning general legal principles and policies, legal services and the legal profession. Considering and implementing reports of the LRC (including preparing and introducing relevant draft legislation into the legislature) form an important part of the Division’s work. Set out below are the various LRC topics on which we have been working in 2012, 2013 and 2014.

Class actions

In recent years, the subject of an aggregate litigation mechanism has been under the spotlight around the world and there have been extensive debates on whether it should be introduced. The need for such a mechanism most typically arises where a large number of persons have been adversely affected by another’s conduct, but each individual’s loss is too small to make it economically viable to undertake individual litigation. Typical examples include consumer cases (involving product liability and consumer fraud), insurance cases, personal injury cases (such as food poisoning). Under the current law in the HKSAR, the procedure for dealing with multi-party proceedings is a rule on representative proceedings under the Rules of the High Court. However, this was criticised as restrictive and inadequate by the Chief Justice’s Working Party on Civil Justice Reform in its Final Report in 2004.

In May 2012, the LRC published its Report on Class Actions, recommending the introduction of a class action regime in the HKSAR. In December 2012, the Legal Policy Division helped establish a cross-sector working group (Working Group) to study the LRC’s proposals and to make recommendations to the Government on how to take the matter forward. The Working Group is chaired by the Solicitor General with members from the private sector, relevant government bureaux and departments, the two legal professional bodies and the Consumer Council. Also on the Working Group is a representative from the Judiciary to provide input to the deliberations from the perspective of interface with court operations. The Working Group has held several meetings to study the LRC’s proposals closely.

Criteria for service as jurors

Some of the HKSAR’s current eligibility criteria and exemptions for jury service date back to 1845, when the original legislation created exemptions for government employees, lawyers, doctors, clergyman, service personnel and employees of the “East India Company.” The extremely strict eligibility requirements which long prevailed in the HKSAR led to criticisms that the HKSAR’s jury list consisted of “a cultural, social and political elite”. For example, previously, “any person ‘ignorant’ of the English language” was a notable ground for disqualification from jury service dating back to 1851. (English language proficiency continued to be a requirement for jury service in the HKSAR until 1997, when proficiency in the Chinese language was added.)

In June 2010, the LRC published a Report on Criteria for Service as Jurors, aimed at ensuring that the eligibility criteria and exemptions for jury service are as appropriate as possible to current circumstances and that the relevant legislative provisions are clear and precise. The Department is currently working towards a draft bill for the purpose of consultation.

Double jeopardy

The rule against double jeopardy, which prevents a person who has been acquitted of an offence from being tried again for the same offence, is grounded on the notion that a person who has undergone the ordeal of a criminal trial and been acquitted should be left undisturbed to lead a normal life following the final verdict. However, if new compelling evidence then emerges pointing to his guilt, the question arises whether he should be allowed to escape justice. These concerns have been highlighted in recent years by rapid developments in forensic science and DNA testing, and changes to the law have been proposed or adopted in a number of jurisdictions. In February 2012, the LRC published a Report on Double Jeopardy proposing that the rule against double jeopardy should be relaxed in the HKSAR in exceptional circumstances.

The Department has decided to take forward all the recommendations in the LRC report. It will work out details of the legislative amendments required in consultation with stakeholders.

Enduring powers of attorney: personal care

At present, an enduring power of attorney (EPA) applies only to decisions about a donor’s property and financial affairs and cannot be used to delegate decisions about the donor’s personal care (including, for example, where and with whom the donor is to live and his everyday health care matters). In July 2011, the LRC published a Report on Enduring Powers of Attorney: Personal Care recommending the extension of the scope of EPAs to include personal care decisions.

The Department has established an inter-departmental working group to examine the recommendations in the LRC report and is also making preparation for a working draft bill, with a view to consulting the legal professional bodies, the Judiciary and other stakeholders in 2015.

Hearsay in criminal proceedings

In November 2009, the LRC published a Report on Hearsay in Criminal Proceedings. The report proposes that the existing rule which prohibits the admission of hearsay evidence in criminal proceedings should be reformed and that the court should be given discretion to admit hearsay evidence during a trial where it is satisfied that the admission of that evidence is “necessary”, and that the evidence is “reliable”.

In April 2012, the Department consulted the Panel on Administration of Justice and Legal Services of the Legislative Council, and in May 2012, it organised a small-scale forum to consult representatives of the Hong Kong Bar Association, the Law Society of Hong Kong and the Judiciary on the way forward. The Department is now preparing a working draft bill, with a view to consulting the legal professional bodies, the Judiciary and other stakeholders in 2015.

Privity of contract

Under the doctrine of privity of contract, only the parties who enter into an agreement can enforce rights under it. The LRC published a Report on Privity of Contract in 2005 which recommended that a clear and straightforward legislative scheme should be enacted to allow parties to an agreement to confer on a third party legally enforceable rights or benefits under that agreement. After careful consideration of the views and recommendations of the LRC, the Department proposed to implement the recommendations of the LRC in full with certain necessary modifications.

The Contracts (Rights of Third Parties) Ordinance (Cap 623) was enacted on 26 November 2014 and published in the Gazette on 5 December 2014. The Ordinance does not completely abolish the doctrine of privity. While it includes statutory provisions to give third parties the right to sue under agreements, it also provides that contracting parties should have the freedom to contract out of these provisions if they wish the doctrine of privity to apply. The Ordinance will come into operation on a day to be appointed by the Secretary for Justice by notice published in the Gazette.