Law Reform to Move with the Times

A society that adheres to the rule of law must, among other principles, ensure that its laws, which protect the fundamental rights of its citizens, are clear and publicly accessible, and are applied evenly and equally.

The world is rapidly changing. To align with the needs of the community to which the laws apply and to maintain their effectiveness, the applicable laws must be under constant review. In Hong Kong, the Law Reform Commission is tasked with recommending reform proposals to make the laws more effective, more accessible and more in tune with the community’s needs, and with engaging the public in the law reform process, and keeping the public informed of its recommendations.

A key role of the Law Society is to uphold the rule of law and to ensure the sustainable development of the practice environment so the legal profession can remain strong and independent. This important role is closely linked to the effectiveness of the legal system, the legislative framework and the laws enacted under it, which must evolve with the development of society to ensure that they address the needs of the people and afford them proper protection of their rights.

The Law Society, through the valuable input of its various specialist committees, reflects the views of the solicitors’ profession on issues raised in law reform consultations.

In 2020, a total of 21 public submissions, and in 2021 up to the beginning of May, 9 more public submissions were made on a wide range of reforms, from issues relevant to sectors of finance and capital market, insurance, real estate, to national security, control of firearm parts and anti-money laundering issues, and various criminal offences. The Law Society submissions in response to public consultations on law reform and legislative proposals are posted publicly on the Law Society website.

The recent child abuse case where a 5-year-old girl died with over 130 wounds on her body shocked the city. The case exposed once again the lack of effective preventive measures and of a clear, uniformed protocol for swift intervention in appropriate cases.

In the Law Society submission for the third report of the Hong Kong Special Administrative Region under the United Nations Convention on the Rights of the Child (“Convention”) dated 9 April 2021, we took the opportunity to comment on Hong Kong’s current system of child protection. Unlike other jurisdictions such as England & Wales, our child protection system is largely voluntary and discretionary. This is because our legislation has not provided for mandatory compliance and consequences for non-compliance. For example, it is not mandatory for the Social Welfare Department and the Police to take any action even if they are satisfied that the child might be in need of protection under the Protection of Children and Juveniles Ordinance (Cap. 213). The Guide “Protecting Children from Maltreatment - Procedural Guide for Multidisciplinary Co-operation” published by the Social Welfare Department, NGOs and other stakeholders has provided a comprehensive guide to protect children facing imminent risk harmed or maltreatment. However, this is a guideline only. It is not mandatory and is not enforceable by legislation.

In the Law Society submission, we recommended that it should be made mandatory for the Social Welfare Department to oversee all NGOs in adopting adequate preventive measures to prevent child maltreatment. Child abuse reports should be made mandatory for all stakeholders who work with children. Channels should be made available to children to report child abuse and to seek help.

We are disappointed that since the Law Reform Committee released its consultation paper on “Causing or allowing the death of a child or vulnerable adult” in 2019, there has not been any progress on reforming the criminal liability of parents, carers and others in cases where children are seriously harmed due to abuse or neglect.

In our submission, we have urged the Government to take all necessary measures to prioritize the improvement of the legal protection for children and reform the system dealing with child abuse cases to deter parents and carers from maltreating children.

Some legislative provisions are very archaic and the level of protection that they could initially offer may no longer function in the same way taking into account the social changes over time. This sad child abuse case is just an example that highlighted the issues. We do not need a tragedy to act as a catalyst to reforms. The Law Society will continue reflecting views of our members relating to areas that require legal reforms and improvements. At the same time, we hope that the views of the legal profession will not only be taken on board, but be acted on in a timely manner.

President

The Law Society of Hong Kong