Dennis Kwok e-Newsletter (June 2014)

19 June, 2014

Dear Friends and Colleagues,

White Paper

The Central People’s Government issued a white paper on the governance of HK whereby it sets out its “official” understanding of “One Country, Two Systems” under the Basic Law. The HK Bar Association rightly issued a public statement to rebut some of the statements contained in the white paper—especially those statements touching on the separation of powers, the rule of law and the independence of the judiciary. These are the fundamental safeguards as guaranteed under the Basic Law. They are not open to renewed interpretations by the CPG. Such an act on the part of the CPG, at such a sensitive time, is indeed worrying. On behalf of the legal profession, I have spoken out against the contents of the white paper, and will continue to defend our values and our system under the Basic Law. Together with members of the Election Committee (Legal sector), we shall be organising further actions in protest against any attempt to undermine the rule of law in HK. Please mark your diaries for 27 June 2014 at 5:30pm. We are planning to hold a silent march in front of the High Court. A formal notice with details will be sent out.

Marriage Amendment Bill

In W v the Registrar of Marriages (FACV 4/2012), the CFA held that a transsexual in W’s situation, that is, one who has gone through a full sex reassignment surgery should be granted a declaration that gives her access to marry a man. Any more restrictive definition applied by the Registrar of Marriages in construing section 40 of the Marriage Ordinance and section 20(1)(d) of the Matrimonial Causes Ordinance would be inconsistent with the constitutional right to marry protected by Article 37 of the Basic Law.
The CFA nevertheless suspended effect of the declaration for 12 months to allow time for any corrective legislative amendments to be considered. It is in this context that the Government introduced the captioned Bill providing that a person who has received a full SRS will be treated as being of the sex to which the person is re-assigned after surgery, for determining the sex of a party to a marriage under the MO. I am the Deputy Chairman of the Bills Committee.
The Bill in its current form, however, falls well short of being able to address all the issues and implications arising from the W Case. For one, there has been no public consultation on whether the line should be drawn at having received a full SRS. Some say the drawing of the line at full SRS is inhumane. On the other hand, religious groups are fearful of the potential impact which this Bill may have on the traditional concept of marriage. These are all controversial societal and legal issues which cannot be satisfactorily resolved in such a short time. That is why I plan to move a Committee-Stage Amendment providing a sunset clause for the Bill; that is to say, once passed into law, the new statutory provisions will automatically expire by July 2017 and meanwhile the Secretary for Justice shall be under a legal obligation to conduct a full public consultation on all the surrounding legal and societal issues arising from the W Case, and he shall present a report, coupled with recommendations on further legislative proposals, to LegCo within 3 years. I believe this may be the best way to move forward, respecting the rule of law and at the same time taking into account the deep concerns expressed by different groups and sectors of society.

Administration of Justice Bill

After an internal review on various procedural matters, the Judiciary has proposed legislative amendments which include that changes be made to the provisions relating to appeals to the CFA by repealing the HK$1M limb.
Pursuant to the current section 22(1)(a) and (b) of the HKCFAO (Cap. 484), an appeal can be lodged from any final judgment of CA in any civil cause or matter, where the matter in dispute amounts to or is of the value of HK$1M or more, and for other cases, leave to appeal to the CFA will only be permitted if, in the opinion of the CA or the CFA, the question involved is one of great general or public importance.
On the one hand, some members of the profession find the present system objectionable as a matter of principle in that $1M is an arbitrary sum and this limb has limited application in practice. On the other hand, given that the percentage of cases being allowed to appeal at the moment is already low, other members are understandably concerned that the removal of the $1M limb might serve to restrict even further appeals to the CFA. We are currently studying the different models adopted in various common law jurisdictions to see whether a proper balance could be struck. As Chairman of this Bills Committee, I will certainly work on this issue closely and your views are welcome.

Hong Kong Solicitors Indemnity Fund

The Solicitors Indemnity Fund is currently in a very healthy financial state. According to its latest Annual Report, the Fund’s total annual income, consisting of investment returns on financial assets as well as contributions made by solicitors, net of claims incurred and operation expenses, has increased from 2012’s HK$215 million to 2013’s HK$534 million, bringing the accumulated reserves up to HK$1.92 billion. With the annual pay out hovering at around HK$50 million in recent years, there should be plenty of room for the lowering of rates currently paid by members of the legal profession. I shall be in discussion with the Law Society and the HKSIF regarding this issue.

As always, please do not hesitate to contact me should you have any questions or views on my work as your representative in LegCo.

Kind regards,
Dennis Kwok


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