Wesley Wong SC, Solicitor General, HKSAR, discusses his work as the head of the Legal Policy Division, as well as the Department of Justice’s top priorities for the year ahead.
“When I succeeded Mr. Frank Poon as Solicitor General last September, I knew I had large shoes to fill and quite a heavy responsibility to shoulder,” Mr.Wong said, as the Legal Policy Division (“LPD”), which he now heads as Solicitor General, is responsible for a diverse portfolio of work that often touches on complex issues, legal or otherwise. “Fortunately, I inherited a strong and healthy team of very professional counsel and support staff, who have been able to work seamlessly with the rest of the Department,” he said.
“One of the LPD’s major responsibilities is to support the Government in maintaining and promoting the rule of law, particularly the implementation of the Basic Law and protection of fundamental human rights. In this regard, LPD counsel offer legal advice to the Government on the basis of an independent, objective and principled analysis of what the law is and what it requires,” he explained. Specifically, LPD counsel must advise on the constitutional viability of legislative proposals and administrative schemes that seek to implement Government policy objectives which themselves must also be formulated with due regard to their legality.
The LPD’s work ranges from advising the Government on: access to justice1, right of abode, electoral reform, gender recognition, CEPA and, more recently, resolution regime for failing financial institutions. There are always new and pressing issues arising; and sometimes LPD counsel must venture into uncharted territories, Mr. Wong explained. To perform tasks responsibly, counsel are not just required to apply their solid knowledge of the law, but also to attain a profound understanding of the “one country, two systems” principle as well as a full appreciation of the interplay between the executive authorities, the legislature and the judiciary under the unique constitutional framework of the HKSAR.
Dispute Resolution Reform
While there is a large amount on the LPD’s plate, Mr. Wong indicated that promoting Hong Kong as a leading centre for international legal and dispute resolution services remains an important slice of the pie. Specific priorities for the LPD include: introducing amendments to the Arbitration Ordinance, establishing a dedicated arbitration unit within the DOJ and evaluating the viability of a class action regime in Hong Kong, among other things.
Amendments to the Arbitration Ordinance
As a matter of policy, Mr. Wong indicated that the DOJ encourages the use of dispute resolution methods such as arbitration and mediation, instead of going to court, to resolve civil and commercial disputes. Hong Kong’s arbitration legislation is continually being updated to ensure it remains user-friendly and aligned with international trends. The DOJ is currently preparing to introduce a necessary amendment to the Arbitration Ordinance (Cap. 609) into the Legislative Council (“LegCo”) in the coming legislative session, commencing in October 2016, to make it clear that disputes over intellectual property (“IP”) rights are capable of resolution by arbitration and that it would not be contrary to public policy to enforce an arbitral award solely because the award is in respect of a dispute or matter which relates to IP rights.
Mr. Wong hopes such amendments will be useful in attracting more parties to resolve their IP disputes by arbitration in Hong Kong. “This would further uplift Hong Kong’s profile as a pioneer in arbitration generally and IP arbitration in particular,” he said.
So far, Mr. Wong reported that the DOJ had received the blessing of LegCo’s Administration of Justice and Legal Services Panel (“AJLS Panel”), as well as positive feedback from stakeholders.
Establishing a Dedicated Arbitration Unit
Mr. Wong noted that the DOJ has recently obtained LegCo’s Finance Committee’s approval for resources to create a permanent post at Deputy Principal Government Counsel level for appointment of a Senior Assistant Solicitor General to head a dedicated Arbitration Unit. This Unit will take up the arbitration portfolio, including the formulation of (a) appropriate policies on the law of arbitration; and (b) effective strategies and measures on promoting and developing Hong Kong’s arbitration services in the increasingly competitive regional environment. The creation of this permanent post not only illustrates, but also buttresses, the Government’s long-term commitment to the promotion and development of Hong Kong’s arbitration services. It is also hoped, Mr.Wong ventured to add, that a public announcement may be made, shortly after this article has gone to print, of the implementation of what DOJ has been planning to do for some time to enhance the overall coordination of efforts between this new dedicated team on arbitration with the Mediation Team in the Civil Division.
Creation of the “Legal Hub”
The DOJ also plans to provide office space to international and local law-related organisations in part of the West Wing of the former Central Government Offices and the entire former French Mission Building, both located in the prime business district in Central. Together with the DOJ which is already housed in the Main and East Wings of the former Central Government Offices (now Justice Place), the whole area is slated to become a legal hub which would generate synergy among all these organisations.
“We are hopeful that the geographic concentration of arbitration and mediation institutions with enhancement in facilities will attract other reputable dispute resolution bodies and law-related organisations to set up offices in Hong Kong, and in turn enhance our competitiveness as a centre for legal and dispute resolution services in the Asia-Pacific region,” Mr. Wong remarked.
Third Party Funding for Arbitration
A sub-committee of the LRC has been looking into the question of third party funding for arbitration. It issued a consultation paper in October 2015 which recommended that the Arbitration Ordinance should be amended to expressly allow for third party funding for arbitration. It was also recommended that clear ethical and financial standards should be developed.
The Sub-committee has been analysing the responses it received during the consultation exercise and is finalising its draft report. Once this has been considered by the LRC, it is expected that the final report on Third Party Funding for Arbitration will be published as early as possible in the fourth quarter of 2016.
“From the perspective of the promotion of Hong Kong’s arbitration services, the DOJ supports the introduction of law reform related to third party funding for arbitration, so as to help maintain Hong Kong’s position as one of the leading centres for international dispute resolution services in the Asia-Pacific region,” Mr. Wong so observed.
Mr. Wong noted that most, if not all, of the feedback received in the first public consultation were supportive of the proposed apology legislation. The Steering Committee on Mediation (“Steering Committee”), having considered the responses received and also the development of the apology legislation in Scotland, made eight final recommendations, concluding that an apology legislation should be enacted in Hong Kong. On the two specific issues which the Steering Committee did not make any recommendations, ie, (a) whether the apology legislation should apply to disciplinary and regulatory proceedings and (b) whether the apology legislation should cover statements of fact accompanying apologies, the Steering Committee noted the responses received and decided to invite further comments. In February 2016, the Steering Committee published the report entitled “Enactment of Apology Legislation in Hong Kong: Report and 2nd Round Consultation” (the “Report”) which included a draft Apology Bill for comments.
On 22 February 2016, the Secretary for Justice and some members of the Steering Committee attended the meeting of the LegCo AJLS Panel and briefed them on the Report and the issues for further consultation. Since the conclusion of the second round consultation, all responses have been reviewed and discussed by the Steering Committee. A final report will be published and a bill will be introduced in the next legislative session.
Class Action Regime
Mr. Wong also noted that the Working Group on Class Actions that he chairs was deliberating on the LRC’s proposal to introduce a class action regime in Hong Kong.
“This is an important law reform proposal for Hong Kong,” Mr. Wong said. “Class actions can promote access to justice. For example, a person who does not have the resources to pursue a legal action against a large company would be able to do so by joining other similar claimants in a class action against the company. Yet, they also pose potential problems and amongst them is the risk of claimants bringing an unmeritorious class action against a defendant in order to coerce it to pay and settle their claims. Some might assume that such an issue can simply be addressed by introducing safeguards against class action abuse in the proposed class action regime. To a certain extent this is true, but the exercise itself is more complicated and challenging than it seems. If too many onerous safeguards against frivolous class actions are incorporated into the proposed regime it would stifle its effectiveness in promoting access to justice for all. On the other hand, if too few safeguards are in place, we would run the risk of creating a litigious culture that is not conducive to the continued development and success of Hong Kong as an international financial and business centre. This is a delicate balance that needs to be considered and handled carefully. These are just two examples of the varied challenges the Working Group is wrestling with.”
Mr. Wong indicated that the Working Group has made considerable progress since last year, but much work remains to be done.
In the “Outline of the 13th Five-Year Plan for the National Economic and Social Development of the People’s Republic of China” announced March 2016 (the “National Five-Year Plan”), the dedicated chapter on Hong Kong and Macao expressly supports Hong Kong in establishing itself as a centre for international legal and dispute resolution services in the Asia-Pacific region. The Central People’s Government (“CPG”) has also expressly supported Hong Kong’s participation in the Belt and Road Initiative.
“The CPG’s support will certainly reinforce Hong Kong’s status as a hub for international legal and dispute resolution services, thereby bringing more opportunities for Hong Kong lawyers and people working in the legal and dispute resolution sectors in Hong Kong,” Mr.Wong said.
The DOJ intends to further capitalise on this support by promoting Hong Kong at both local and overseas conferences across the region.
Criminal Justice Procedural Reforms
With respect to the criminal justice system, Mr. Wong was pleased to report that the DOJ is considering legislative amendments to enhance the protection of sexual offence complainants when giving evidence in Court.
Enhancing Protection of Sexual Offence Complainants
“The DOJ is mindful of its duties to safeguard the fairness and equity of the criminal justice system,” Mr. Wong said. “In prosecuting sexual offences, our prosecutors respect the right of crime victims and witnesses at all times. On the other hand, we protect the fundamental right of defendants to a fair trial. The Prosecution Code sets out the existing protection for victims and witnesses in detail. For sexual offence complainants, there have been calls for stronger and better protection to them when giving evidence in court.”
“While it is the DOJ’s view that the suggestion on automatic provision of screens for complainants in sexual offence cases should be handled with great care having regard to issues regarding the fundamental right of a defendant to a fair trial, the principle of open justice as well as the undesirability of undue fettering of judicial discretion, it is considered that there is room for appropriate alternative legislative measures that can achieve the same aim of protecting complainants in sexual offence cases and simultaneously pass the tests of rationality and proportionality.”
Currently, under s. 79B of the Criminal Procedure Ordinance (Cap. 221), the court may, on its own motion or upon application, permit a person falling within any of the following three categories to give evidence by way of a live television link:
- children (other than a defendant) giving evidence in proceedings in respect of an offence of sexual abuse or cruelty, or of an offence (other than one triable summarily only) which involves an assault on, or injury or a threat of injury to, a person; or
- a mentally incapacitated person (including a defendant) giving evidence in proceedings in respect of an offence that is triable otherwise than summarily only; or
- a “witness in fear” of giving evidence in proceedings in respect of any offence.
A “witness in fear” is defined in s. 79B(1) to mean a witness whom the court hearing the evidence is satisfied, on a reasonable grounds, is apprehensive as to the safety of himself or any member of his family if he gives evidence. While it is possible that a victim of sexual offences can be a “witness in fear”, and hence be covered by the existing s. 79B, it is not necessarily so. A victim or witness of a sexual offence, though not “in fear” as statutorily defined, ought nonetheless to be treated with respect, compassion and understanding. The court should have the requisite powers in appropriate cases to protect them from the embarrassment of being exposed to public sight, any indignity of treatment, and the anxiety arising from the need to physically face the assailants during the trial.
In this regard, Mr. Eric Cheung, Principal Lecturer of the Department of Law at the University of Hong Kong, has prepared a draft bill to add a new provision to s. 79B of Cap. 221, so that where a complainant within the meaning of s. 156(8) of the Crimes Ordinance (Cap. 200) is to give evidence in proceedings in respect of a specified sexual offence within the meaning of s. 117(1) of Cap. 200, the court may, on application or on its own motion, permit the complainant (ie, the victim) to give evidence by way of a live television link, subject to such conditions as the court considers appropriate in the circumstances. The effect of the proposed provision is to confer on the court with discretion to permit a complainant of sexual offences who is outside the three current categories to give evidence by way of live television link, so that the protection to such individuals when giving evidence in court can be strengthened.
“We consider that this proposed legislative measure can broadly achieve the aim of offering additional protection to complainants in sexual offence cases. The proposal conforms to the principle of open justice, does not unduly fetter the court’s discretion in the administration of criminal justice and is consistent with practices in other jurisdictions,” Mr. Wong said. He also indicated that AJLS Panel members and two legal professional bodies showed their support for the proposal.
Mr. Wong indicated that the DOJ is seriously assessing the viability of this legislative proposal and will appropriately consult the stakeholders with a view to taking forward the necessary legislative amendment.
“Together with the new Practice Direction recently issued by the Judiciary on the ‘Use of Screens in Sexual Offence Cases in Magistrates’ Courts’ which became effective on 1 August 2016 and the new leaflet prepared by the Hong Kong Police to inform adult sexual offence complainants of the availability of protective measures, this proposed legislative amendment will enhance the protection offered to such complainants in a more comprehensive and embracive manner.”
Mr. Wong indicated that judicial independence remains something Hong Kong and its people are very proud of. “The fact that so many eminent judges from other common law jurisdictions are willing to sit on our Court of Final Appeal since 1997 speaks volumes of the independence enjoyed by Hong Kong’s Judiciary. Indeed, in the latest Global Competitiveness Report 2015–2016 published by the World Economic Forum in September 2015, the HKSAR was ranked fourth in terms of judicial independence (rising from fifth place ranking the previous year) out of 140 jurisdictions around the world, being the second amongst the common law jurisdictions and the only Asian jurisdiction in the top ten,” he said. “The DOJ will continue to zealously guard judicial independence. We will watch for any sign of its erosion and stand up against any act having a tendency to undermine judicial independence.”
1 This includes issues on the Court of Final Appeal’s power of final adjudication, higher rights of audience for solicitors, the mode of carrying on a solicitor’s practice in the form of limited liability partnership and solicitor corporation, etc.
Wesley Wong SC
Solicitor General, HKSAR
In September 2015, he was appointed the fifth Solicitor General of the HKSAR, succeeding Mr. Frank Poon. In that capacity, Mr. Wong heads the Department of Justice’s Legal Policy Division, where he actively promotes Hong Kong as a leading international legal and dispute resolution centre.
He has spent time in different divisions of the department for the last 23 years. From 2011–2015, he served as a Deputy Director of Public Prosecutions.
Mr. Wong also currently sits on the Higher Rights Assessment Board for solicitor advocates and from time to time, volunteers for the Hong Kong Advocacy Training Council and at local law schools. He has been an accredited mediator since 2009 and was appointed Senior Counsel by the Chief Justice in 2013.