THE HONG KONG BAR ASSOCIATION’S COMMENTS ON THE CONSULTATION PAPERON THE PROPOSED IMPLEMENTATION
OF A FIVE-DAY WEEK FOR THE JUDICIARY
Background
1.In April 2006, Judiciary Administrator issued a ‘Consultation Paper on Proposed Implementation of a Five-Day Week or the Judiciary’ (“Consultation Paper”) containing proposals on implementation details of introducing a five-day week[1] for the Judiciary which the Chief Justice intends to adopt in principle having regard to the policy initiative proposed by the Administration in January 2006 and that Judiciary Administration (“JA”) staff are essentially civil servants, to whom civil service regulations and practices are applicable.
2.On 19 April 2006, the Hong Kong Bar Association (“the Bar”) was asked by the Judiciary Administrator for its comments on the Consultation Paper.
The Bar’s general comments
3.The Bar disagrees with theproposalscontained in the Consultation Paper to close accounts offices, the High Court library and the Resource Centre for Unrepresented Litigants on Saturdays. The Consultation Paper has not comprehensively assessed the impact of a 5-day week to accessibility to the High Court Building and to the activities presently held in that building on Saturdays such as the ceremony for senior counsel or “Silks” or the admission or barristers and solicitors, mooting, examinations and training conducted by the Bar Association and its members and by universities. More significantly, the Bardoes not agree that a five-day week for the Judiciary can be implemented without amendingallrelevant primary legislation and in particular, section 71 of the Interpretation and General Clauses Ordinance, Cap. 1(“Cap. 1”)by excluding Saturday in the computation of time. The Bar’s position is that if all relevant primary legislation and in particular, section 71 of Cap. 1 is not so amended, any such amendment to subsidiary legislation (such as the Rules of the High Court)will be of no effect. In any event, it is unsatisfactory, potentially unfair to litigants and also arguably unlawfulnot to amend all relevant primary legislation. At the very least, it will create uncertainty and confusion.
The Bar’s comments on the proposals relating to necessary services
4.The Bar has no objection to the proposal[2] to introduce a new Saturday sitting roster arrangement under which on any Saturday morning (which is not a public holiday) four Magistrates’ Courts will be open to deal with fresh remand cases from the Hong Kong Island, Kowloon, New Territories East and New Territories West Regions respectively because this adequately satisfies the legislativerequirement[3] that an arrested person shall be brought before a Magistrate as soon as practicable or else set free upon his/her own recognizance.
5.The Bar has no objection to the proposal[4] that upon the implementation of a five-day week in the Judiciary, the duty judges at various levels of court (such as Court of First Instance Judges of the High Court who deal with urgent applications e.g. injunctions and duty District Judges and Magistrates who deal with urgent applications under the Mental Health Ordinance, Cap. 136) would be on duty for the whole day of Saturday in the same way as they are on duty on Sundays and public holidays.
6.The Bar has no objection to the proposal[5] that upon the implementation of the five-day week, the duty Bailiffs who execute warrants of arrest against vessels in admiralty cases would be on duty for the whole day of Saturday in the same way as they are on duty on Sundays and public holidays.
7.The availability of the services of Magistrates, High Court Judges, District Judges and Bailiffs in the above circumstances is both necessary and essential for the proper administration of justice.
8.However, the Bar disagrees with the statement in paragraph 12 (at page 4) of the Consultation Paper that other court and support services set out in paragraph 9 (at page 4) of the Consultation Paper need not be provided on Saturday morning and the proposed change to a five-day week should not create problems. The Bar respectfully submits that the following services set out in paragraph 9 of the Consultation Paper are either essential or desirable to remain accessible to the public on Saturday mornings.
(a)Accounts offices. This objection applies particularly to the accounts offices at magistrates’ courts. Often when bail conditions are imposed or varied by the requiring additional cash bail, the defendant is given time to raise the money and deposit it with the court’s accounts office the following day. Closing the accounts offices on Saturday mornings means that defendants whose cash bail are increased on Fridays have 2 extra days to raise the money than those whose cash bail are increased on other week days. This disparity is, with respect, unacceptable.
(b)Libraries. Members of the legal profession do not work 5-day weeks. If the need arises, they can work round the clock. But often they do not have the means or access to textbooks, old law reports, the Gazette, and the historical records in the court libraries. Saturday mornings are a few hours in each week where members of the legal profession and indeed members of the working public who are litigants in person have outside normal court hours to conduct concentrated research that an extra 45 minutes between Monday and Thursday (if this is what paragraph 18 (at page 6) of the Consultation Paper means in the context of libraries) cannot provide. The Bar suggests that the High Court Library should remain open on Saturday mornings at the present hours. It is not anexaggeration to regard the High Court Library as an essential counter service.
(c)Resource Centre for Unrepresented Litigants. Members of the working public who are litigants in person will also find it meaningless to be given an extra 45 minutes between Monday and Thursday (if this is what paragraph 18 (at page 6) of the Consultation Paper means in the context of libraries). The travelling time from their places of work to Admiralty may have already taken a significant proportion of those 45 minutes. The Resource Centre should be regarded as an essential counter service deserving to remain open on Saturday mornings.
The Bar’s comments on the proposal relating to court sittings
9.The Bar has no objection to the proposal[6]to apply the five-day week arrangement to court sittings provided that Judges continue to have a discretion to sit on Saturday. The Bar objects to any interference with the exercise of such discretion.
10.However, the Consultation Paper has not comprehensively assessed the impact of a 5-day week to accessibility to the High Court Building and the activities presently held in that building on Saturdays save for Judicial Studies Board Activities.
11.The ceremony for new senior counsel or Silks and the admission of barristers and solicitors are important events of a legal professional’s career. Very often it is a family affair. They are all presently held on Saturdays, a day when the traffic, both vehicular and human, around the High Court is less and family members and friends are better placed to attend. Holding all such ceremonies on weekdays tends to diminish the importance of such events to the participants concerned, given the increased difficulty of getting all family members and friends to attend and the inconvenience of and to other court users.
12.The Consultation Paper does not include a proposal for the continued accessibility of the High Court Building for the Hong Kong Bar Association and its members on Saturday mornings for training purposes. This should be addressed.
13. The Consultation Paper does not include a proposal for the continued accessibility of the High Court Building for the universities on Saturday mornings for mooting, examinations and other training purposes. This should be addressed.
The Bar’s comments on the proposals relating to registries/offices hours and working hours of JA Staff
14.The impact of having a 5-day week[7] and the accompanying extension of opening hours of court registries, accounts offices, and bailiff offices between Mondays to Thursdays[8] to litigants in person should be carefully assessed. People working long hours do not necessarily benefit from the extended opening hour on working days by 45 minutes. The alternating long/short week may enable essential things to be done.
The Bar’s comments on the proposal relating to Judicial Studies Board Activities
15.The Bar has no objection to that part of proposal[9] that consideration should be given to holding large scale Judicial Studies Board training events on a Saturday.However, the Bar objects to that part of proposal to limit the number of such occasions to not more than a few per year. The question of whether or not to hold such occasions on a Saturday and if so, their frequency, should be considered together, and by the same body. However, Judicial Board Activities are not the only activities that use the High Court Building.
The Bar’s comments on implementation of the five-day week
16.The Bar accepts that all relevant Rules of Court relating to time would need to be amended to enable implementation of the five-day week and that New Practice Directions in opening hours of registries, etc., would need to be issued by the Chief Justice[10]. However, the Bar submits that priority should be given to amending all relevant primary legislation and in particular, section 71 of Cap. 1, by excluding Saturday in the computation of time.
No intention to amend section 71 of Cap. 1
17.Paragraph 28 (at page 9) of the Consultation Paper states that it is understood that the Administration does not intend to amend section 71 of Cap. 1 in connection with the implementation of the five-day week as any amendment may have “widespread repercussions”. The Bar disagrees with this approach and strongly urges the Administration to amend section 71 of Cap. 1.
Section 71 of Cap. 1
18.Section 71(1) of Cap. 1headed “Computation of Time”states as follows:-
“In computing time for the purposes of any Ordinance-
(a) a period of days from the happening of any event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;
(b) if the last day of the period is a public holiday or a gale warning day or black rainstorm warning day the period shall include the next following day, not being a public holiday or a gale warning day or black rainstorm warning day;
(c) where any act or proceeding is directed or allowed to be done or taken on a certain day, then if that day is a public holiday or a gale warning day or black rainstorm warning day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next following day, not being a public holiday or a gale warning day or black rainstorm warning day;
(d) where an act or proceeding is directed or allowed to be done or taken within any time not exceeding 6 days, no public holiday or a gale warning day or black rainstorm warning day shall be reckoned in the computation of that time.”
19.Section 71(2) of Cap. 1defines “black rainstorm warning day” and “gale warning day”.
20.Section 3 of Cap. 1states that “general holiday” and “public holiday” mean any day which is a general holiday for the purposes of the General Holidays Ordinance, Cap. 149.
21.Section 2(1) of Cap. 1states that :-
“Save where the contrary intention appears either from this Ordinance or from the context of any other Ordinance or instrument, the provisions of this Ordinance shall apply to this Ordinance and to any other Ordinance in force, whether such other Ordinance came or comes into operation before or after the commencement of this Ordinance, and to any instrument made or issued under or by virtue of any such Ordinance.”
22.Section 28(1)(b) of Cap. 1states that:
“Where an Ordinance confers powers on any authority to make subsidiary legislation the following provisions shall have effect with reference to the making thereof - …(b) no subsidiary legislation shall be inconsistent with the provisions of any Ordinance”.
Case law on section 71 of Cap. 1
23.In The Securities and Futures Commission v The Stock Exchange of Hong Kong Limited, unreported, MP 3225, 1991, 30 October 1991, Kaplan J. held at page 11 that by virtue of section 2(1) of Cap. 1, Cap. 1“supplements and does not override other ordinances” and that Cap. 1 “has to give way where the substantive ordinance provides otherwise.”
24. However, the effect of section 28(1)(b)of Cap. 1 is that in the event of any inconsistency between any ordinance (includingCap. 1) and subsidiary legislation, subsidiary legislation has to give way. The Rules of the High Court are subsidiary legislation: see
(a)Gobind Mohan & Another v Brian Shane McElney & Ors. [1983] HKLR 308, where the Court of Appeal held that the then Rules of the Supreme CourtO. 20 r. 5(5)(empowering the court to permit a plaintiff to amend his pleadings so as to introduce new causes of action after expiration of the limitation period) was inconsistent with the Limitation Ordinance, Cap. 347 and thus ran foul of section 28(1)(b) of Cap. 1 and was ultra vires;
(b)marginal note 3/2/9 (at page 41) of the Hong Kong Civil Procedure 2004; and
(c)paragraph 3.2.1 (at page 22) of Hong Kong Civil Court Practice 2005 by WS Clarke.
25.In Li Tat Kong v Official Receiver [2001] 1 HKC 207, Rogers VP
(a)said at page 215, lines H to I, that it is only if section 71(1)(b) of Cap. 1 is applicable that an extension would be granted because “the normal rule at common law is that the fact that the last day of a prescribed period is a Sunday does not extend a period which would otherwise expire on a Sunday”; and
(b)held, obiter, at page 216, lines E to H, that ‘the period’ in section 71(1)(b) of Cap. 1 must relate to a period of days and that this would be:-
“by no means unreasonable since in periods which are reckoned in days rather than weeks, months or years, the occurrence of a gale warning or a black rainstorm warning or indeed of a public holiday would be of particular significance, and the periods to be reckoned must of their nature be short. It is therefore understandable that the legislature should extend that period to take account of such events. When the periods are long, however, such as weeks, months or years, there is no apparent reason why the periods should be extended since those affected by the periods have plenty of time to take account of whatever is required to be done.”
The Rules of the High Court
26.O. 3 r. 2 of the Rules of the High Court (“RHC”) headed “Reckoning Periods of Time”states as follows :-
‘(1) Any period of time fixed by these rules or by any judgment, order or direction for doing any act shall be reckoned in accordance with the following provisions of this rule.
(2) Where the act is required to be done within a specified period after or from a specified date, the period begins immediately after that date.
(3) Where the act is required to be done within or not less than a specified period before a specified date, the period ends immediately before that date.
(4) Where the act is required to be done a specified number of clear days before or after a specified date, at least that number of days must intervene between the day on which the act is done and that date.
(5) Where, apart from this paragraph, the period in question, being a period of 7 days or less, would include a Sunday or a general holiday, that day shall be excluded.
In this paragraph “general holiday” (公眾假期) means a day which is, or is to be observed as, a general holiday under the General Holidays Ordinance (Cap 149).’
27.RHC O. 3 r.4 headed “Time Expires on Sunday etc.” states as follows :-
‘(4)Where the time prescribed by these rules, or by any judgment, order or direction, for doing any act at an office of the Court expires on a Sunday or other day on which that office is closed, and by reason thereof that act cannot be done on that day, the act shall be in time if done on the next day on which that office is open.’
Proposed amendments to RHC O. 3 rr. 2 and 4
28.The Judiciary Administrator proposes that consideration be given to amending:-
(a)RHC O. 3 r. 2(5)by adding Saturdayto “Sunday or a general holiday”, so that Saturday would be excluded in the calculation of time limits where the period in question is 7 days or less but would be included if the period is more than 7 days[11]; and
(b)RHC O. 3 r. 4 by adding Saturdayto “Sunday or other day on which that office is closed”[12].
Inconsistency between un-amended primary legislation and amended subsidiary legislation
29.If any ordinance including in particular, section 71 of Cap. 1, is not amendedto exclude Saturday from the computation of time, such ordinance will be inconsistent with any subsidiary legislation such as RHC O. 3 r. 2(5) and r. 4 that is so amended, and by virtue of section 28(1)(b) of Cap. 1, such amendments would be of no effect because the ordinance takes precedence. Suchordinance will not exclude Saturdayin the computation of time unless it is a public holiday or gale warning day or black rainstorm warning daywhereas the amended subsidiary legislation will exclude Saturday even if it is not a public holiday or gale warning day or black rainstorm warning day.
30.The Judiciary Administrator has pointed out in paragraph 28 (at page 10) of the Consultation Period that “with registries/offices in the Judiciary closed on Saturday, where a time period prescribed by Ordinance, such as a limitation period, expires on a Saturday, no statutory provision will exist to extend time as in the case of a public holiday under section 71(1) of Cap. 1.”This is unsatisfactory and potentially unfair because a litigant may be deprived of an extension of time which may be crucial in its case through no fault of its own. It is alsoarguably unlawful to disable a litigant from using the full period of time which he is legally entitled to.At the very least, it will create uncertainty and confusion. If, as Rogers V.P. has pointed out in Li Tat Kong v Official Receiver, it would not beunreasonable to extend time to take into account a public holiday, a gale warning day or black rainstorm warning day where the period of time is reckoned in days, it must be not unreasonable to extend time to take into account the closure of the registries/offices because of the five-day weeksince in all these instances no work is performed .[13]