Legal Policy Division

Counsel in the division

The 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 Organization 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:

  • petitions from prisoners seeking remission of sentences or referral of their cases to the Court of Appeal
  • public enquiries and complaints referred to the division
  • petitions to the Chief Executive under Article 48(13) of the Basic Law
  • statutory appeals to the Chief Executive or the Chief Executive in Council made by members of the public
  • statutory appeals or representations from civil servants

The division is also responsible for advising the government on the powers and procedures of the Legislative Council.

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Human rights

The division provides specialised advice and assistance on human rights law within the Department of Justice and to other government bureaus and departments, reflecting the human rights provisions of the Basic Law. Apart from advising other divisions of the department on human rights law and issues arising from litigation, the division also advises government bureaus and departments on the human rights implications of legislative proposals and practices arising from the implementation of legislation to ensure their consistency with the human rights provisions of the Basic Law.

The division provides advice and assistance to government bureaus in the preparation of reports to the United Nations under various human rights instruments that have been extended to Hong Kong, namely the International Covenant on Civil and Political Rights (implemented by the Hong Kong Bill of Rights Ordinance (Cap 383)), the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of Persons with Disabilities. Counsel in the division also attend UN committee hearings on the HKSAR’s periodic reports.

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), the Family Status Discrimination Ordinance (Cap 527) and the Race Discrimination Ordinance (Cap 602).

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Mainland law and co-operation with the Mainland

Promoting Hong Kong’s legal services in the Mainland and legal exchanges

 
 
The then Deputy Solicitor General, Mr Frank Poon, speaks at the Legal Services Forum in Shanghai
   

The department continues to work closely with the legal profession in seeking greater access to the legal services market in the Mainland within the framework of CEPA and in promoting Hong Kong legal and arbitral services in the Mainland. In July 2010, the department, together with the Hong Kong legal and arbitration professional bodies, jointly organised a forum on Hong Kong legal services in Shanghai as part of Hong Kong’s participation in the Shanghai Expo 2010. The forum showcased the strengths of Hong Kong as a legal and dispute resolution centre in the region.

In November 2010, the Secretary for Justice visited Guangzhou and Shenzhen and exchanged views with senior local government officials on fostering exchanges between the legal profession and co-operation on legal matters. In July 2011, the Secretary for Justice visited Beijing and discussed a range of matters with central government officials, including mutual legal assistance, the implementation of CEPA, the development of Hong Kong as a dispute resolution centre and co-operation with the legal profession.

   
 
A delegation led by the Secretary for Justice visiting Beijing in July 2011
 

The department continues to run programmes to facilitate Mainland officials’ better understanding of Hong Kong’s common law system. These include the Common Law Training Scheme, where participating Mainland officials attend an LLM programme either at the University of Hong Kong or the Chinese University of Hong Kong and undertake short-term attachments to different government departments or law-related organisations in Hong Kong for practical training. As at August 2011, a total of 165 Mainland officials had completed the training scheme.

 

Co-operation in cross-boundary legal matters

The department continues to provide assistance to policy bureaus and departments on legal issues arising from cross-boundary projects such as the construction of the Hong Kong – Zhuhai – Macao Bridge, the Guangzhou – Shenzhen – Hong Kong Express Rail Link and the development of the Lok Ma Chau Loop and Qianhai in Shenzhen.

 

Co-operation under the Framework Agreement

The Framework Agreement on Hong Kong/Guangdong Co-operation was signed in April 2010. The agreement seeks to promote greater co-operation between government organs and among legal professional bodies. It provides for the establishment of a communication mechanism on legal affairs and the strengthening of channels for the exchange of legal documents. It also encourages the legal and notarial professions to strengthen their co-operation. The department has discussed with Guangdong officials and the Hong Kong professional bodies ways to enhance exchanges and co-operation.

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Co-operation on legal matters with Macao and Taiwan

In addition to pursuing closer legal co-operation with the Mainland, the department is also exploring ways to strengthen legal co-operation with our counterparts in Macao and Taiwan. The department has held preliminary discussions with the Macao SAR Government on an arrangement for the reciprocal enforcement of arbitral awards, along the lines of a similar arrangement that was concluded with the Mainland in 1999.

The department has begun considering ways to improve co-operation in legal affairs that would be mutually beneficial to Hong Kong and Taiwan. The department will explore ways to enhance legal co-operation in discussions with the relevant Taiwan authorities through the Hong Kong-Taiwan Economic and Cultural Co-operation and Promotion Council and the Taiwan-Hong Kong Economic and Cultural Co-operation Council.

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Basic Law

The division provides advice to the government on the interpretation of the Basic Law, both in ensuring consistency 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 preparation 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. In 2011, the division (in conjunction with the Civil Service Training & Development Institute, the Civil Service Bureau and the Constitutional and Mainland Affairs Bureau) published one issue of 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 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 regularly added to and updated as more case precedents and other literature on the Basic Law become available.

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Significant initiatives and reforms in 2010 and 2011

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 (established by law under the Legal Practitioners Ordinance (Cap 159)). The Standing Committee’s functions include keeping under review, evaluating and assessing the system and provision of legal education and training in Hong Kong, as well as monitoring the provision of vocational training of prospective legal practitioners in Hong Kong by organisations other than the Law Society of Hong Kong or the Hong Kong Bar Association. A representative from the department serves on the Standing Committee.

In 2010 and 2011, the Standing Committee continued to keep under review the LLB, JD and PCLL programmes offered by the University of Hong Kong, the City University of Hong Kong and the Chinese University of Hong Kong. Specific issues considered by the Standing Committee included practising law in Chinese, the JD degree, and the implications of the “3+3+4” academic structure for the three LLB and PCLL providers.

The then Solicitor General, Mr Ian Wingfield, at a sitting of the Legislative Council
Counsel attending the Mainland Legal Studies at Peking University in October 2011

 

 

 

 

 

 

 

Legislation

During 2010 and 2011, counsel in the division worked on a number of legislative items for which the department had policy responsibility:

  • Legal Practitioners (Amendment) Ordinance 2010 - The Ordinance was enacted in January 2010. It amended the Legal Practitioners Ordinance (Cap 159) to enable solicitors having at least five years’ post-qualification experience and satisfying further eligibility requirements to apply to an assessment board for higher rights of audience before the High Court and the Court of Final Appeal. After the Ordinance is put into full operation, the public will have access to a wider choice of capable advocates in the higher courts.
  • Arbitration Ordinance – This Ordinance was enacted in November 2010 and came into force in June 2011. The new Ordinance has reformed the arbitration law in Hong Kong through the creation of a single regime for all types of arbitration on the basis of the Model Law on International Commercial Arbitration of the United Nations Commission on International Trade Law. The Ordinance further strengthens Hong Kong’s appeal as an attractive place to conduct arbitration.
  • Matrimonial Proceedings and Property (Amendment) Ordinance 2010 – The Ordinance was enacted in December 2010 and came into effect on 1 March 2011. The High Court and the District Court are empowered to order financial relief for a former spouse whose marriage has been dissolved or annulled, or who has been legally separated, in judicial or other proceedings outside Hong Kong. The Ordinance addresses the hardship encountered by such a party in cases where no, or insufficient, financial provisions have been ordered by a foreign court.
  • Legal Practitioners (Amendment) Bill 2010 – This Bill was introduced into the Legislative Council in June 2010. It proposes amendments to the Legal Practitioners Ordinance (Cap 159) in order to introduce limited liability partnerships (LLPs) as a business model for solicitors’ practices in Hong Kong. LLP status would confer limited liability on innocent partners of an LLP firm so that they would not, solely by reason of being partners, be held personally liable for professional negligence committed by other partners of their firm.
  • Enduring Powers of Attorney (Amendment) Ordinance 2011 – This Ordinance was enacted in December 2011. The Ordinance implements the recommendations of the Law Reform Commission report on "Enduring Powers of Attorney" so as to relax the existing requirement that an enduring power of attorney be signed at the same time before a medical practitioner and a solicitor as well as to replace the existing Schedule to the Enduring Powers of Attorney (Prescribed Form) Regulation by a form and explanatory notes which are drafted in clear and plain language.
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  Stuart M I Stoker
Principal Government Counsel, Legal Policy Division
   
   

Stuart Stoker began his career as a Procurator Fiscal Depute (prosecuting lawyer) in Glasgow in Scotland, at that time Europe’s busiest criminal court, having graduated from Edinburgh University in 1974. Postings followed to Linlithgow and Edinburgh before in 1980 he joined the Legal Aid Department in Hong Kong. In 1981, Stuart moved to the then Legal Department (now the Department of Justice), first as a prosecutor and subsequently in 1984 as Assistant to the Solicitor General in the forerunner of what is now the Legal Policy Division.

He was promoted to the directorate in 1985 as Assistant Solicitor General and has been a Principal Government Counsel since 1992, when he was appointed Secretary to the Law Reform Commission, the post he currently holds. He is the longest serving of the three lawyers who have held that post since the Commission was established in 1980.

Stuart was elected as Hong Kong’s first (and still the only) member of the American Law Institute in 2003, the USA’s premier law reform body. “I suspect I’m also the only lawyer in the department with a qualification in interior design, but that’s another story!” In 2010, his extensive experience in law reform was recognised when he was invited to undertake a consultancy in Malawi to review the operation of the Law Commission there as part of an EU-funded project on the rule of law. “It was,” he says, “a great opportunity to engage with the law reform process and its practitioners in another jurisdiction, and one I very much valued. Learning from what’s been done in other jurisdictions is particularly important in law reform work.”

Outside the office, Stuart maintains a wine cellar, several casks of whisky, two cats and a dog – not necessarily in that order of importance.

 
   

 

   
  Chandar Li Chui-mei
Personal Secretary I, Legal Policy Division
   
   

Chandar Li joined the Civil Service in 1983 as a Stenographer in the then Royal Hong Kong Police Force. On completion of her initial three years’ probation, she was transferred to the then Legal Department in 1987, where she joined the International Law Division. Chandar moved to the Law Drafting Division in 1988 and worked there until 1995. From then until 2007 Chandar worked in a number of different government bureaus and departments, including the unit within the Protocol Division dealing with matters related to the handover on 30 June 1997. A highlight for Chandar was being tasked to receive “VVIPs” on that day in pouring rain at Tamar.

Chandar was promoted to Personal Secretary I in 1997. Following a posting to the Hong Kong Police Force in 2007, Chandar was posted to the HKSAR Beijing Office to act as Senior Personal Secretary from 2008 to 2010. “I was so lucky that during those three years I was able to attend different big events like the Beijing Olympics in 2008 and the 60th Anniversary National Day Event”, she says. Taking advantage of living in Beijing, Chandar spent some of her leisure time travelling through most of the north-western and north-eastern parts of China.

Chandar returned to the Department of Justice in 2011 and is now a Personal Secretary in the Legal Policy Division’s Human Rights Unit.

 
   

 

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