Joint statement by the Law Society with the Bar on the Chief Justice’s early retirement

On 2 September 2009, the Law Society and the Hong Kong Bar Association jointly issued a statement on the decision of the Chief Justice to take early retirement. As is typical of the Chief Justice’s approach to his duties, the Law Society and the Bar can see that the decision has been taken by the Chief Justice with the best long-term interests of Hong Kong and its Judiciary in mind. His stewardship of the Judiciary since 1997 has been enormously successful and of great importance in the development of the Hong Kong SAR and its legal system since the resumption of sovereignty. That there is today such a strong, independent and internationally respected Judiciary in the Hong Kong SAR – a matter vital to the continued enjoyment of the rule of law – is testament to the Chief Justice’s able leadership.

Legal Practitioners (Amendment) Bill 2009

The Legal Practitioners (Amendment) Bill proposes to implement the recommendations of the Chief Justice’s Working Party on Solicitors’ Right of Audience by appropriate amendments to the Legal Practitioners Ordinance (Cap 159). Solicitors with a minimum of five years’ post-qualification, appropriate advocacy experience and having satisfied certain suitability requirements are eligible to apply to the Assessment Board for higher rights of audience in civil proceedings, criminal proceedings or both civil and criminal proceedings either through the qualification route or the exemption route. The Law
Society’s submissions on the Bill are posted on www.hklawsoc.org.hk.

Criminal legal aid

To protest against the government’s continuing refusal to reverse the chronic neglect of criminal legal aid, the Criminal Law and Procedure Committee of the Law Society will stage a month-long boycott of criminal legal aid cases in October 2009. The criminal legal aid fee system has remained unchanged for many years, despite repeated appeals from the Law Society. The Law Society’s position is that the government should substantially increase the overall legal aid budget and treat civil and criminal legal aid cases equally.

The Law Society expresses concerns that the inevitable result of this disparity is that experienced practitioners will increasingly withdraw from criminal legal aid work. In the long run, this persistent under-funding of the system will also deter young lawyers from
developing a career in criminal litigation. A survey conducted by the Law Society in 2007 found that 47% of responding lawyers and 36% of responding firms said they had considered ending their participation in the criminal legal aid scheme, mainly due to the inadequate fee resources allocated by the government.

Hong Kong’s legal aid expenditure per capita falls short of other common law jurisdictions, according to a study, ‘Legal Aid Systems in Selected Places’, released by the Research and Library Services of the Legislative Council Secretariat this June. Legal aid spending per capita in Hong Kong is HK$75, compared to HK$430 in England and Wales, HK$173 in Ontario, Canada, and HK$150 in New South Wales, Australia.

Inland Revenue (Amendment) (No 3) Bill 2009

The Inland Revenue (Amendment) (No 3) Bill proposes to authorise the Hong Kong Administration to enter into a comprehensive agreement for the avoidance of double taxation (CDTA) with another territory that may require the administration to collect information relevant to the taxes imposed by that other territory. The obligation is contemplated by the exchange of information provision in the 2004 version of the OECD model tax convention (2004 Standard) which has been adopted by most territories around the world.

In the position paper, ‘Potential Liberalization of the Exchange of Information Article to be included in Hong Kong’s Double Tax Agreements’ published on 16 September 2008, the Law Society identified a number of concerns, including in respect of the safeguards against information from Hong Kong being divulged to third parties, and that the Administration should adopt a clear policy not to negotiate CDTAs incorporating the 2004 Standard unless the prospective CDTA partner removes Hong Kong from any ‘blacklist’ it maintains. The Administration has indicated that it will address these issues in any subsequent CDTA it negotiates and will introduce safeguards through subsidiary legislation. The Law Society’s submissions on the Bill are posted on www.hklawsoc.org.hk.

Minimum Wage Bill

The Minimum Wage Bill was gazetted on 26 June 2009 with the object of providing a minimum wage at an hourly rate for all employees except domestic workers, student interns, employees of family-run businesses and apprentices. A Minimum Wage
Commission will be established. The Law Society’s submissions on the Bill are posted on www.hklawsoc.org.hk.

Arbitration Bill

The Arbitration Bill proposes to abolish the distinction between domestic and international arbitration and to create a unitary regime of arbitration on the basis of the UNICITRAL Model Law on International Commercial Arbitration for all types of arbitration.
The purpose of the new legislation is to make the law of arbitration ‘more user-friendly to arbitration users both in and outside Hong Kong ... and accords with widely accepted international practice and development’ thereby facilitating Hong Kong’s role as the regional dispute resolution centre. The Law Society’s submissions on the Bill are posted on www.hklawsoc.org.hk.

Review of the Trustee Ordinance and related matters

In June 2009, the Financial Services and the Treasury Bureau issued a consultation paper to gauge public views on the legislative proposals to improve the Trustee Ordinance (Cap 29) and the law relating to trusts. The stated aim of the exercise is to provide an up-to-date framework for the operation of trusts in Hong Kong with a view to strengthening the competitiveness of the trust services industry in Hong Kong. A Law
Society Working Party chaired by Mr Billy Ma has completed its review of the legislative proposals on the trustees’ duty and standard of care; trustees’ power for performance of their duties; trustees’ entitlement to remuneration; beneficiaries’ right to information and to remove trustees; rules against perpetuities and excessive accumulation of income; and other areas of trust law and practice. The Law Society’s submissions on the Consultation Paper are posted on www.hklawsoc.org.hk.