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Newsletter - Nov 2007
2007-11-05 Dear Colleague The Policy Address debate took place on 24 – 26 October. For the first time in 7 years, the motion of thanks was carried – with a long string of amendments. If I were the CE, I’d rather not be thanked at all than thanked grudgingly. Civil Justice Reform – the Bill I received a letter from a colleague expressing concern for the civil procedure reform which is in progress. Just to remind you, the extensive change to existing civil procedure is being effected in two stages: first, a bill will be passed to amend the High Court Ordinance, District Court Ordinance, and other relevant enactments. This bill is at present being examined in LegCo by a Bills Committee of which I am the Chairman. Once that bill is passed, amendments to the present Rules of the High Court and Rules of the District Court will be substantially amended by way of subsidiary legislation. This is likely to happen almost immediately afterwards. The revised draft Rules are now available. While the Bar and the Law Society have given their views in consultation, there is no reason why you should not put forward your own views to the Bills Committee, by writing to me or to Mrs. Percy Ma, the Clerk of the Bills Committee. You will be doing a service to the profession and the public. There are certainly material changes to civil litigation affecting the rights of parties. The following are just examples: - the court will be given the power to make cost orders against a non-party (the draft rules provide that the non-party will be heard before the order is made); - an “affected person” will be able to apply for an order to determine a plaintiff as a “vexatious litigant” and stop him or her from proceeding with an action or bring a new action without leave of the court; - pre-action discovery which is available to personal injuries only will be generally available; at the same time, the scope of the discovery will be restricted to what is “directly relevant”, intentionally cutting out the “train of inquiry” kind of discovery. The effect of this on PI cases is at present undergoing further consultation; - most interlocutory appeal which is at present as of right will require leave in future. The Bills Committee has suggested that requiring either reasonable chance of success or “for some other compelling reason” is too stringent and that “compelling” should be deleted, and the administration is considering it. Draft Rules Taking an advance look at the Revised draft Rule, there are also a number of significant changes, one of which virtually ends ex parte application for leave for judicial review, and puts in a stage of paper and/or oral contest of the application. That can have undesirable results, as those of you who attended a Friday tea gathering last year given by Professor Christopher Forsyth may remember. You should familiarize yourself with the draft Rules and give a shout now if you see trouble ahead. LegCo may still be able to stop it if there are sound reasons. I am grateful to the colleague for his letter, but also much saddened by the fact that he preferred to be anonymous for fear of prejudicing his firm’s position. There can be no such prejudice. Practitioners do make presentation to LegCo Panels or Bills Committees in public or write to me in private. The identity of the writer gives me a chance to explore the advice further, or at least enables me to reply directly and in full. I will respect any request of confidentiality. If even lawyers are afraid of prejudicing themselves or their clients by speaking out on matters of public policy, Hong Kong is in a bad way indeed. Protecting the Freedom from Fear Perhaps recent events have made me feel concerned that Hong Kong may be moving towards a ministry of fear. Candidates for election report that people who support them are afraid to do so publicly for fear of pressure or retaliation. Martin Lee S.C., was openly slandered against for his visit to the United States and his article calling on nations not to boycott the Olympic Games but to use the opportunity to engage China and press for more progress in human rights protection. His article is easily accessible in the English original and Chinese translation, and people can verify for themselves what the correct version is. Yet many turned a blind eye to the facts and prefer to go on attacking, while others who know that this is unfair prefer to keep quiet. No government official made any statement to affirm the respect for the freedom of speech as Hong Kong’s core value. Secret Surveillance and the Judiciary You may remember the controversy on the “spy bill” rushed through last August. The first report of the Commissioner on Interception of Communication and Surveillance, Mr. Justice Woo, has just been published. The Report gave assurance that the system established by the Ordinance has been strictly enforced, and the Panel Judges had acted as conscientious gate-keepers. We are of course relieved and are proud of our judges for rising to the occasion. However, the Report also revealed that the workload on the judges chosen by the CE for the dubious honour of doing the job has been onerous: 542 applications to deal with within 4 – 5 months, plus weekly detailed reports on the applications, approved or refused, must be time-consuming. More importantly, the degree of involvement of these judges in the secret investigative process is deep, when the Judiciary is supposed to be jealous of is detachment and impartiality. It is worrying to consider what may be the effect on our justice system in the long run. District Council and LegCo Elections The next few weeks are intense with elections and election campaigns all over Hong Kong. I was pleased to assist in some of the campaign efforts, because I believe we should uphold the importance of democratic elections. The Hong Kong Island by election has entered a white hot stage, with the two chief contestants, Mrs. Anson Chan and Mrs. Regina Ip running neck-and-neck in the polls, and the other 5 candidates each with only less than 0.5% to 10% share. This Newsletter is not the place to expound on my own preferences, but this I think is worth pointing out: no one is bound to win. In a democratic election, anything can happen. The by election contrasts sharply with the CE “election” where the outcome was inevitable from the start. Whoever wins in this by election, the process will be a strong argument for further democratization. Don’t forget to vote: District Council elections on 18 November*; LegCo by election for Hong Kong Island on 2 December*. Friday tea gatherings We have had two lively tea gatherings, thanks to excellent speakers Alexander King S.C., and Ian Brownlee and Nigel Kat. I am sure you will find the coming attractions for 23 November and 7 December equally timely and interesting. Please see the programme attached. We have started to issue our “VIP” cards. I hope you find them fun. Yours sincerely Margaret Ng For information on who are the candidates in your district for the District Council election, please see http://www.elections.gov.hk/dc2007/eng/ and the website of the Democracy Depot: http://www.ddepot.org/. For the LegCo HKI by election, the Government website is http://www.elections.gov.hk/legco2007by/eng/index.html, and the election websites of the candidates available so far are: http://www.reginaip.hk/en_index.php for Regina Ip and http://www.yourchoiceyourvoice.org/ for Anson Chan Cancellation: Please note that Judge Lallah’s talk on November 6 is cancelled because the speaker is unable to come to Hong Kong. |
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