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News archive (2009)print news


Member re-appointed to the Commission (January 2009)

Ms Anna Wu has been re-appointed as a member of the Commission for a second three-year term with effect from 1 January 2009. Ms Wu was first appointed to the Commission on 1 January 2006.


　

Member re-appointed to the Commission (February 2009)

Mr Paul Shieh, SC, has been re-appointed as a member of the Commission for a second three-year term with effect from 1 February 2009. Mr Shieh was first appointed to the Commission on 1 February 2006. He is currently the chairman of the Commission's Double Jeopardy Sub-committee.


　

Report on Arrest: Administration's plan to implement outstanding recommendations (February 2009)

The Security Bureau has advised the Law Reform Commission of its plan to implement the outstanding recommendations in the Commission's report on Arrest, Detention, Search and Seizure, published in November 1992:

"Of some 60 recommendations in the LRC report on Arrest, Detention, Search and Seizure, the Executive Council in 1997 endorsed the Security Bureau's proposal to accept about 50 (some in their entirety and some with suitable adaptation to take account of circumstances in Hong Kong).

Since then, around half of these recommendations have been implemented and the Security Bureau will now focus on the remaining 24.

The Security Bureau has convened an inter-departmental working group with the participation of the law enforcement agencies to examine the implementation of the 24 recommendations and to prepare draft drafting instructions for the necessary legislative amendments. Many of the outstanding recommendations are complex and controversial in nature. The Security Bureau aims to complete the draft drafting instructions by early 2010 for the Department of Justice's legal advice."


Enduring Powers of Attorney report: Administration's plan to implement recommendations (April 2009)

The Department of Justice has advised the Law Reform Commission of its plan to implement the recommendations in the Commission's report on Enduring Powers of Attorney, published in March 2008:

"The Department of Justice has carefully considered the recommendations contained in the Law Reform Commission's report on Enduring Powers of Attorney, published in March 2008, and has decided to put forward legislation to implement those recommendations in full.

The department will now prepare a bill to implement the recommendations for the consideration of the Executive Council. Subject to the Executive Council's approval, it is the department's intention to introduce the bill into the Legislative Council in 2010. "
　

Report on Winding-up Provisions of the Companies Ordinance: Administration's response (April 2009)

The Secretary for Financial Services and the Treasury has advised the Law Reform Commission of the Administration's response to the recommendations in the Commission's report on Winding-up Provisions of the Companies Ordinance, published in July 1999. The Secretary for Financial Services and the Treasury said:

"Having reviewed the key issues addressed in the report and taking into account the sector's latest developments, the Financial Services and the Treasury Bureau and the Official Receiver's Office (ORO) have concluded the following:

  • Not to pursue the recommendation to merge corporate insolvency legislation with personal bankruptcy legislation as there is no clear benefit or market demand for such a change;
  • To continue to rely on established professional sectors to deliver private sector insolvency services, rather than establishing and upkeeping a statutory licensing system at this time, as the latter is considered to be not cost-effective. Nonetheless, the Administration will revisit this recommendation later in the context of Phase II of the Companies Ordinance Rewrite (on winding-up provisions);
  • On remuneration (fees) of office-holders, the market has operated smoothly in determining the fee level of private sector insolvency services, with disputes settled by the Court's Taxing Masters;
  • The Admininistration considers there is no need to adopt the recommendation to establish an adjudication panel arrangement to determine fees;
  • LRC's concern that ORO should be adequately funded is noted. ORO's funding bids, including additional resources as and when necessary, will continue to be processed in accordance with the Administration's well-established policies and procedures; and
  • With respect to the other technical amendments recommended in the subject report, they will be reviewed as part of Phase II of the Companies Ordinance Rewrite exercise.

In view of the high priority accorded to revisiting the issue of corporate rescue, Phase II of the Companies Ordinance Rewrite will be taken forward after Phase I of the same exercise as well as any consultations and legislative reforms, as appropriate, on corporate rescue have been substantially completed."


　

Reports on Regulating the Interception of Communications, Stalking, Civil Liability for Invasion of Privacy, Privacy and Media Intrusion and The Regulation of Covert Surveillance: Administration's response (April 2009)

The Secretary for Constitutional and Mainland Affairs has advised the Law Reform Commission of the Administration's response to the recommendations in the Commission's five reports on privacy. These are: Regulating the Interception of Communications (December 1996), Stalking (October 2000), Civil Liability for Invasion of Privacy (December 2004), Privacy and Media Intrusion (December 2004) and The Regulation of Covert Surveillance (March 2006).The Secretary for Constitutional and Mainland Affairs said:

"The Adminstration has considered the LRC reports on Regulating the Interception of Communications, Stalking, Civil Liability for Invasion of Privacy, Privacy and Media Intrusionand The Regulation of Covert Surveillance.

The five reports touch on the sensitive and controversial issue of how to strike a balance between protection of individual privacy rights and freedom of the media. There were mixed responses and divergent views from different sectors of the community. The Administration has to reconcile the differences, with a view to reaching a general consensus within the community on the way forward having regard to the need to balance the legitimate interests of all parties concerned. Given the complexity and sensitivity of the issues involved, the Administration would handle the five reports in stages and map out the way forward in consultation with relevant parties.

The Constitutional and Mainland Affairs Bureau (CMAB) will first take forward the LRC report on Stalking. CMAB has convened an inter-departmental working group to examine the recommendations in this report. The working group is also reviewing the latest developments in overseas anti-stalking legislation which may have an impact on any proposed regime to regulate stalking. In addition, CMAB will consider how relevant parties could be consulted on the recommendations of the LRC on stalking in due course. The Bureau will then map out the way forward in the light of feedback obtained. "


Report on The Family Dispute Resolution Process: Administration's response (May 2009)

The Secretary for Home Affairs has advised the Law Reform Commission of the Administration's response to the recommendations in the Commission's report on The Family Dispute Resolution Process, published in March 2003. The Secretary for Home Affairs said:

"The Administration welcomes and supports the recommendations in the LRC's report.

As regards the report's detailed recommendations (for example, the provision of funding and resources support for the Non-Governmental Organisations conducting mediation services), as they touch upon various policy areas including funding support, child and family welfare and court powers and procedures which come under different bureaux and departments, their implementation is only feasible with the policy and resource support from the relevant bureaux and stakeholders from the integrated child and family welfare perspectives, and also support from the legal profession and the courts.

The Home Affairs Bureau stands ready to continue to coordinate efforts and input from relevant bureaux and stakeholders in further pursuing the recommendations of the LRC report."


Consultation paper on Enduring Powers of Attorney: Personal Care published (July 2009)

On 16 July 2009, the Law Reform Commission published a consultation paper seeking the public's views on proposals to extend the scope of an enduring power of attorney (EPA) to include decisions as to the donor's personal care. At present, an EPA can apply only to decisions about the donor's property and financial affairs and cannot be used to delegate decisions about the donor's personal care.

The paper explains that a power of attorney is a legal instrument that is used to delegate legal authority to another person. By executing a power of attorney, the donor of the power gives legal authority to another person (the attorney) to make legal decisions on his behalf.

A conventional power of attorney can only be made by a person who is mentally competent, and any such power of attorney will lapse if the donor subsequently becomes mentally incompetent. It may be in just such circumstances, however, that the donor of the power would want his attorney to be able to act for him. To meet that difficulty, the Enduring Powers of Attorney Ordinance (Cap 501) allows a special type of power of attorney, called an "enduring power of attorney" to be executed while the donor of the power is mentally capable but which continues to have effect after the donor becomes incapable. At present, an EPA can apply only to decisions about the donor's property and financial affairs and cannot be used to delegate decisions about what may be termed the donor's personal care.

In a number of other jurisdictions the scope of an EPA is much less restricted and a donor can delegate to his EPA attorney personal care decisions on matters such as where he should live (and with whom), his daily dress and diet and his day-to-day health care. The Commission proposes that a similar approach should be adopted in Hong Kong and that the scope of an EPA should be extended to include decisions as to the donor's personal care. "Personal care" for these purposes should include everyday decisions as to the donor's health care, but not decisions involving the giving or refusing of life-sustaining treatment.

The Commission recommends that the personal care decisions which an attorney may make under an EPA should include:

(a) where the donor lives;

(b) who the donor lives with;

(c) whether the donor works and, if he does so, where and how the donor works;

(d) what education or training the donor gets;

(e) whether the donor applies for a licence or permit;

(f) the donor's daily dress and diet;

(g) whether to consent to a forensic examination of the donor;

(h) whether the donor will go on holiday and where; and

(i) legal matters relating to the donor's personal care.

At the same time, the Commission proposes that the following decisions should be statutorily excluded from the scope of an EPA:

(a) making, varying or revoking the donor's will

(b) making an EPA for the donor

(c) exercising the donor's right to vote in an election or referendum

(d) consenting to the adoption of a child of the donor who is under 18

(e) consenting to the marriage of the donor

(f) removal of non-regenerative tissue from the donor while alive for donation to someone else

(g) sterilisation of the donor if the donor is, or is reasonably likely to be, fertile.

The Commission recommends that there should be a statutory duty imposed on an EPA attorney to act in the donor's best interests and that powers of supervision of an EPA attorney should be given to the court and to the Guardianship Board.

To avoid the difficulties which can arise through non-recognition of an EPA made overseas, the Commission recommends that an EPA made in a jurisdiction other than Hong Kong should be recognised in Hong Kong if:

(a) it complies with the Hong Kong execution requirements (though witnessed by a solicitor/doctor registered in the other jurisdiction, rather than Hong Kong); or

(b) it complies with the EPA requirements of that jurisdiction.

The consultation paper contains a list of questions on which the public's views are sought but the Commission would welcome views generally on the issues raised in the paper. The consultation period will last until 30 September 2009.


　

Member re-appointed to the Commission (October 2009)

Mr Justice Chan, Permanent Judge of the Court of Final Appeal, has been re-appointed as a member of the Commission for a second three-year term with effect from 1 October 2009. Mr Justice Chan was first appointed to the Commission on 1 October 2006.


Report published on Hearsay in Criminal Proceedings (November 2009)

On 30 November 2009, the Law Reform Commission 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 a discretion to admit hearsay evidence where satisfied that the admission of that evidence is "necessary", and that that evidence is "reliable".

The report says that a simple explanation of the term hearsay would be that "when A tells a court what B has told him, that evidence is called 'hearsay' ". Under the existing law, hearsay evidence is inadmissible in criminal proceedings unless it falls within one of a number of common law or statutory exceptions. The principal justification for the exclusion of hearsay is that, since the evidence is presented to the court second-hand by someone other than the original statement-maker, there is no opportunity for the other side to test the reliability of the evidence by cross-examining the original statement-maker as to what was actually said.

A major criticism of the hearsay rule, however, is that it is too strict and inflexible, and sometimes results in the exclusion of evidence which, by the standards of ordinary life, would be regarded as accurate and reliable. In addition, some of the present exceptions to the rule are complex and uncertain.

The report points out that these problems are not unique to Hong Kong. A number of other common law jurisdictions have already reviewed the law and recommended or enacted changes. The report stresses that, while the Commission is satisfied that reform is needed, the Commission is equally clear that any reform of the hearsay rules must incorporate adequate safeguards.

The Commission proposes that, while irrelevant and unreliable hearsay evidence should be excluded, relevant and reliable hearsay evidence should be admitted (where the need exists for such evidence) under a comprehensible and principled approach to that admissibility.

The Commission recommends that, as a general rule, the present rule against the admission of hearsay evidence should be retained but there should be greater scope to admit hearsay evidence in specific circumstances. Hearsay evidence should be admissible:

(a) if it falls within an existing statutory exception;

(b) if it falls within one of several common law exceptions to be preserved;

(c) if the parties agree; or

(d) if the court is satisfied that it is "necessary" to admit the hearsay evidence and that it is "reliable".

The admission of hearsay will be "necessary" only in certain specified circumstances, such as where the declarant is dead, or cannot be found, or refuses to testify on the ground of self-incrimination. The party applying to admit hearsay evidence under the discretionary power must prove the condition of necessity to the required standard of proof, which will be "beyond reasonable doubt" if the party applying is the prosecution, and "on a balance of probabilities" if the party applying is the defence.

In determining whether the evidence is "reliable" for the purposes of admission, the court must have regard to all circumstances relevant to the apparent reliability of the statement, including the nature and contents of the statement, the circumstances in which it was made, and factors that relate to the truthfulness of the declarant. Hearsay evidence will not be admitted unless its probative value exceeds its prejudicial effect.

In order to give greater protection to an accused person where hearsay evidence has been admitted under the new discretionary power, the Commission recommends that the trial judge should have the power to direct a verdict of acquittal of the accused at any time after the conclusion of the prosecution's case if the judge considers that, taking account of a number of factors, including the nature of the hearsay evidence and the importance of that evidence to the case against the accused, it would be unsafe to convict.

The Commission also makes recommendations in relation to other specific aspects of hearsay, including the admissibility of banking, business and computer records, and prior statements of witnesses.


Reports on Guardianship of Children and International Parental Child Abduction: Administration's plan to implement recommendations (November 2009)

The Secretary for Labour and Welfare has advised the Law Reform Commission of the Administration's plan to implement the recommendations in the Commission's reports on Guardianship of Children and International Parental Child Abduction. The Administration intends to take forward all the recommendations of the two reports, either in full or in a modified form.

In respect of the Guardianship of Children report (published in January 2002) the Secretary for Labour and Welfare said:

"The Law Reform Commission’s report on Guardianship of Children made a total of nine law reform recommendations in relation to the law (mainly the Guardianship of Minors Ordinance (Cap 13)) which governs the appointment of guardians for children in the event of the death of one or both parents.

In considering the recommendations, our primary concern is the well-being of the child. We have examined carefully how this objective can best be achieved in an effective and practicable manner, having regard to the advice of various stakeholders. The Administration agrees with the LRC that the legal procedures for parents to appoint guardians for their children should be simplified and that the relevant provisions can be improved to address the shortcomings of the existing regime, so as to encourage more parents to take the positive step of making guardianship arrangements for their children. We are prepared to take forward all the recommendations.

The Labour and Welfare Bureau intends to consult the Legislative Council Panel on Welfare Services before issuing the drafting instructions in 2009-10 for a bill to implement the recommendations."

The Administration's detailed responses to the individual recommendations in the report are set out here.

In respect of the report on International Parental Child Abduction (published in April 2002), the Secretary for Labour and Welfare said:

"The Law Reform Commission’s report on International Parental Child Abduction recommends legislative amendments to prevent, and provide remedy for, international parental child abduction. The report also sets out for the Administration's consideration the LRC's observations on the need for reform in respect of a number of related issues.

In considering the recommendations and observations, the Administration's primary concern is the well-being of the child who is the subject of international parental child abduction. We have examined carefully how this objective can best be achieved in an effective and practicable manner, having regard to the advice of various stakeholders. The Administration generally agrees with the principles advocated by the LRC, and is prepared to take forward all the recommendations, including Recommendation 4 which we plan to implement in a modified form. We have also taken note of the LRC's observations and intend to take follow-up action as appropriate.

The Labour and Welfare Bureau intends to consult the Legislative Council Panel on Welfare Services before issuing the drafting instructions in 2009-10 for a bill to implement the recommendations."

The Administration's detailed responses to the individual recommendations in the report are set out here.


Consultation paper on Class Actions published (November 2009)

The Law Reform Commission's Class Actions Sub-committee published on 5 November 2009 a consultation paper proposing the introduction of a mechanism for multi-party litigation in Hong Kong.

Under the current law in Hong Kong, the sole machinery for dealing with multi-party proceedings in Hong Kong is a rule on representative proceedings under the Rules of the High Court which was criticised as restrictive and inadequate by the Chief Justice's Working Party on Civil Justice Reform in its Final Report in 2004.

Some jurisdictions have adopted a procedure known as a "class action", which enables the claims of a number of persons against the same defendant to be determined in a single court action. In a class action, a representative plaintiff' sues on behalf of himself and all the other persons ("the class") who have a claim in respect of the same (or a similar) alleged wrong, and whose claims raise the same questions of law or fact.

The Sub-committee believe that the introduction of a comprehensive regime for multi-party litigation would enhance access to justice and would provide an efficient, well-defined and workable mechanism. The Sub-committee are well aware of the risk that a class action regime might unduly encourage litigation and are conscious of the need for caution.

In line with that approach, the Sub-committee recommend that in order to filter out cases that are clearly not viable, class action proceedings should only be allowed to continue as collective proceedings if they have been certified by the court. In addition, the new regime should be introduced first in the Court of First Instance and its extension to the District Court should be deferred for at least five years until a body of case law on the new procedures has been established. Once extended to the District Court, District Court judges should be given the power to transfer complex cases to the Court of First Instance.

The Sub-committee recommend that the new class action regime should adopt an "opt-out" approach. In other words, once the court certifies that a case is suitable for a class action, any member of the class, as defined in the order of court, would be automatically bound by the subsequent litigation, unless he "opts out" of the class action within the time limits prescribed by the court order. Where the proceedings involve parties from outside Hong Kong, an "opt-in" procedure should be the default position (that is, persons will not be included in the class litigation unless they take active steps to "opt in" to the litigation), with a discretion given to the court to adopt an "opt-out" procedure if the particular circumstances of the case warrant it.

The recommendations in the consultation paper are intended to facilitate discussion and do not represent the Sub-committee's final conclusions. The Sub-committee would welcome views, comments and suggestions on any issues discussed in the consultation paper, and in particular on the questions set out in Chapter 10. The consultation period will last until 4 February 2010.

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