Legal Policy Division


Legal Policy Division advises Government departments and bureaus on whether proposed legislation, or a particular policy, is consistent with the Basic Law, international human rights standards, and established principles underlying the legal system. It also has a specialist unit that provides advice on (and promotes understanding of) the law on the Mainland. In addition, the division plays an active part in law reform, both through its responsibility for any new legislation promoted by the Secretary for Justice, and because the lawyers who serve in the Secretariat of the Law Reform Commission are part of the division.


General legal policy

As well as advising on the legality of policies established by the Government, the division also assists in formulating policy, particularly in relation to the legal system and the legal profession. The division has assisted the legal profession in exploring the opportunities that China's accession to the World Trade Organisation will offer and in enhancing its opportunities in the Mainland under the Closer Economic Partnership Arrangement (CEPA).

Where the Secretary for Justice has responsibility for a particular piece of new legislation, counsel in the division will take an active part in the preparation of the Bill and its presentation to the Executive and Legislative Councils. This will often include extensive consultation with those with an interest in the matter, both inside and outside the Government.

Apart from preparing new legislation, the work of the division includes advising on legal issues arising out of petitions to the Chief Executive from prisoners seeking remission of sentences; advising the Chief Executive whether to refer a decided criminal case to the Court of First Instance or the Court of Appeal; and responding to public enquiries and complaints. The division is also responsible for advising the Government on a wide variety of constitutional law issues and the powers and procedures of the Legislative Council.

In 2007, the division took on the new task of advising on petitions under Article 48(13) of the Basic Law by those claiming to be the victims of torture. The division gives advice on comments and clarifications provided by the Director of Immigration, and on Security Bureau's assessment of any new matters included in torture claim petitions.




Human rights

The division provides specialised human rights advice and assistance within the Department of Justice and to other Government bureaus and departments, reflecting the human rights provisions of the Basic Law. Lawyers in the division advise members of the department's Civil Division on human rights law and issues arising from litigation.

The division also advises on the human rights policy aspects of proposals for new legislation (and practices arising from the implementation of legislation) and ensures their consistency with the human rights provisions of the Basic Law.

The division provides advice and assistance in the preparation of reports to the United Nations under various UN instruments related to human rights that have been extended to Hong Kong. In 2006, the HKSAR's report under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment was submitted to the United Nations as part of China's report on the Convention. Hearings on reports under the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination Against Women took place in March and August 2006 respectively.

The division also advises Government bureaus and departments extensively on the interpretation, implementation and implications of the Sex Discrimination Ordinance (Cap 480), the Disability Discrimination Ordinance (Cap 487) and the Family Status Discrimination Ordinance (Cap 527). Recently, the division has also provided advice and assistance in relation to the Race Discrimination Bill.




Mainland law and cross-border relations


The Department of Justice is represented at an event promoting knowledge of the law in Shenzhen (December 2007).
The department continues to work closely with the legal profession in seeking greater liberalisation of the legal services market in the Mainland under the framework of CEPA. Along with the legal profession, the department attends legal conferences and other promotional activities, both in the Mainland and in Hong Kong, to promote Hong Kong's legal services to the Mainland, especially Hong Kong's strengths as a regional dispute resolution centre.

In September 2007, the Secretary for Justice led a delegation from the Hong Kong legal profession to the 7th China Lawyers Forum in Yinchuan, Ningxia. The Solicitor General led a delegation of counsel from the Legal Policy and International Law Divisions to Beijing and Qingdao in December 2007. Those bodies visited by the delegation included the Ministry of Justice, the Supreme People's Court, the Hong Kong and Macao Affairs Office of the State Council, the Ministry of Foreign Affairs and the Qingdao Justice Bureau.

A major programme to enhance mutual understanding of the legal systems of Hong Kong and the Mainland is the Common Law Training Scheme. Under this scheme, participating officials from the Mainland attend an LLM programme at a Hong Kong university and spend time on attachment to relevant government departments here. By August 2007, a total of 101 Mainland officials had completed the programme. In addition, short term attachment programmes in Hong Kong have been arranged for officials from Mainland justice departments and Bureaus with which the department has co-operation agreements.


The Solicitor General, Ian Wingfield (middle), leads a delegation of counsel from the Legal Policy and International Law Divisions to visit the Ministry of Justice during the Legal Study Visit to Beijing and Qingdao (December 2007).


Co-operation in cross-boundary legal matters


The co-location of Hong Kong's immigration and customs facilities with those of the Mainland at the Shenzhen Bay Port was implemented in 2007.
There has been a steady increase in cross-border projects, such as the co-location arrangements made to enable more streamlined and efficient immigration and customs clearance. Under these arrangements, Hong Kong's immigration and customs facilities have been co-located with those of the Mainland at the Shenzhen Bay Port. The Shenzhen Bay Port Hong Kong Port Area Ordinance (Cap. 591) was enacted to allow the HKSAR to exercise jurisdiction over the Hong Kong Port Area at the Shenzhen Bay Port according to the laws of Hong Kong and to administer that area as a closed area.




Basic Law


Legal Policy Division advises on whether legislation and policies are consistent with the Basic Law.
The division provides advice to the Government on the interpretation of the Basic Law, both in ensuring alignment of existing legislation with the Basic Law and in the formulation of new policies and legislation. Questions concerning the interpretation of provisions of the Basic Law have arisen in a number of important lawsuits. In such cases, counsel in the division work closely with other divisions in the conduct of the Government's case, and provide advice and research on the Basic Law and other related issues.

The division plays a key role in promoting understanding of the Basic Law. It provides support to other government departments and public authorities including the Civil Service Training & Development Institute and the Civil Service Bureau both by providing counsel to give lectures and seminars on the Basic Law and by assisting in the production and revision of self-learning booklets and other training materials for use throughout the civil service. The division (in conjunction with the Civil Service Training & Development Institute, the Civil Service Bureau and the Constitutional and Mainland Affairs Bureau) publishes the Basic Law Bulletin. The Bulletin was first published in 2001 and is intended to promote greater awareness and knowledge of the Basic Law among civil servants. The latest issue (the tenth) was a special issue to commemorate the tenth anniversary of the coming into effect of the Basic Law in 2007.

The division maintains a collection of research materials relevant to the Basic Law and constitutional law generally. This includes reference books and articles, relevant decisions and interpretations of the Standing Committee of the National People's Congress, reports of the Basic Law Consultative Committee and court judgments. The collection is constantly added to and updated as more case precedents and other literature on the Basic Law become available.


A forum organised in Beijing on the 10th anniversary of the implementation of the Basic Law (June 2007).




Significant initiatives and reforms in 2006 and 2007

Survey of legal services

The department has been at the forefront of an initiative to review the supply of, and demand for, legal services in Hong Kong. In November 2001, the Legislative Council called for a comprehensive review of the legal needs of the Hong Kong community and how those needs were being met. This followed similar reviews in the United Kingdom, which have led to important proposals there to enhance access to justice.

The Solicitor General currently chairs a consultative committee which oversees the Hong Kong research project. The committee comprises representatives from the legal services sector and other professional, academic and community bodies interested in the promotion of access to justice. Consultants began the necessary research in July 2004 and their reports are expected to be released in 2008.


Review of legal education

The department continues to play an active role in legal education and training and, in particular, in the work of the Standing Committee on Legal Education and Training. The Standing Committee was established by law under the Legal Practitioners Ordinance (Cap 159) in August 2005. Its functions include keeping under review, evaluating and assessing the system and provision of legal education and training in Hong Kong and monitoring the provision of vocational training of prospective legal practitioners in Hong Kong by organisations other than the Law Society or the Hong Kong Bar Association. The department takes part in the work of the Standing Committee by way of a representative nominated by the Secretary for Justice.

Recent developments in legal education and training include the extension of the Bachelor of Laws programme from three to four years (commencing in September 2004) and the corresponding reform of the Postgraduate Certificate in Laws course. Hong Kong's third Law School was established in the Chinese University and commenced its Bachelor of Laws programme in 2006-07. It participates in the work of the Standing Committee as do the existing law schools.




Legislation

During 2006 and 2007, counsel in the division worked on a number of pieces of legislation of which the department had carriage.

Domicile Bill - This Bill seeks to simplify the complex and confusing common law rules for determining a person's domicile, and makes it easier to ascertain a person's domicile.

Mainland Judgments (Reciprocal Enforcement) Bill - This implements the terms of the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region Pursuant to Choice of Court Agreements between Parties Concerned which was signed by the HKSARG and the Supreme People's Court of the PRC in July 2006.

Statute Law (Miscellaneous Provisions) Bill 2007 - This proposes a number of amendments to various Ordinances, including:

 
amending the Costs in Criminal Cases Ordinance to enable the courts to require legal or other representatives to compensate in costs a party injured as a result of unjustifiable conduct on their part;

amending the Fixed Penalty (Criminal Proceedings) Ordinance to make orders for costs;

raising the maximum penalty for the offence of perverting the course of public justice;

deleting finality provisions preventing further appeal under the Fire Services (Installation Contractors) Regulations, Pharmacy and Poisons Ordinance, and the Lifts and Escalators (Safety) Ordinance;

amending the Legal Practitioners Ordinance and Rules of the High Court relating to time for serving notices of motion of appeal;

amending the definition of “Postgraduate Certificate in Laws” to include the PCLL to be awarded by the Chinese University of Hong Kong; and

amending the Legal Practitioners Ordinance to make it clear that a law firm which intends to employ a bankrupt solicitor or foreign lawyer should apply to the Law Society for written permission to do so.




Albert Lam Kin-chung, Law Translation Officer,
Law Reform Commission Secretariat
Albert graduated from Hong Kong Polytechnic, majoring in electrical engineering. He worked as an engineer with electrical products before switching to a career in translation. He joined the Judiciary in 1985 as a court interpreter. Through self-study he obtained an LLB degree and became a member of the Institute of Linguists of the UK. He was recruited by the then Legal Department in 1994 as a Law Translation Officer in the Law Drafting Division. In 1998, he was transferred to the Law Reform Commission Secretariat and is now the longest-serving law translator in the Secretariat.

"Although I'm not the author of the consultation papers or reports published by the Law Reform Commission, the fact that the Chinese version reflects my efforts gives me great satisfaction in my job," he says. "I also find the topics I've translated in the Law Reform Commission very interesting and meaningful because all of them concern important social and legal issues."

Outside the office, Albert is an avid holiday farmer. He and his wife visit the Produce Green Foundation's Hok Tau Farm weekly to grow organic vegetables on a rented piece of farmland. "It can be quite tiresome at times when we have to work under the scorching sun or in rainy conditions, but it allows me to forget about the hectic life in a big city and 're-charges' me both physically and spiritually."


Godfrey K F Kan, Senior Government Counsel, Human Rights Unit, Legal Policy Division
After obtaining a Higher Diploma in Business Studies from Hong Kong Polytechnic in 1981, Godfrey Kan started his career in the transport sector, first as an Assistant Operations Officer with Kowloon Motor Bus Co and subsequently with the Government Land Transport Agency.

In 1987, Godfrey decided to pursue a legal career and, after obtaining an LLB degree from Hong Kong University, he qualified as a solicitor in 1993. He obtained an LLM from University College London in 1994 and joined the then Legal Department as a Crown Counsel in the same year. His first posting was to the secretariat of the Law Reform Commission where he spent most of his time working on a major review of the law relating to privacy.

Godfrey was promoted to Senior Crown Counsel in 1997. He was transferred to the Human Rights Unit of the Legal Policy Division in 2004.

Godfrey is pleased to see that human rights are accorded full respect and protection in Hong Kong under the Basic Law. "I enjoy working with the Human Rights Unit, as it plays an important role in ensuring that all legislative and administrative proposals are consistent with human rights," he says.