The Council supports the introduction of clear rules to give effect to the proposed system of appointment and regulation and does not have any specific areas of concern with the conduct of notaries public, as gleaned from its work in receiving and examining complaints from the public.
Nevertheless, in general terms the Council would like to raise an issue of principle that it has raised in the past with other regulatory bodies regarding the disciplinary provisions of regulatory bodies that are concerned with examining the conduct of professionals who have dealings with members of the general public.
As a matter of general principle, the Council advocates that such bodies should operate under a system where there is
- * an independent complaints handling mechanism that will examine complaints against the conduct of professional;
- * the mechanism is accessible to the consumer and transparent in operation; and
- * the standard against which the conduct of professionals is tested, reflects the aspirations of the wider community.
Having regard to the above, the Council would like to comment on the proposed rules regarding discipline of notaries, the establishment of the disciplinary tribunal panel, and the procedure for making complaints. Sections 40F (Discipline of notaries public) Section 40G (Notaries Public Disciplinary Tribunal Panel) and Section 40H (Complaint about conduct of notaries public), in addition to the Notaries Public (Practice) Rules, and Notaries Public (Disciplinary Tribunal Proceedings) Rules apply.
Section 40F notes the general categories of professional misconduct under which a notary public shall be liable to be disciplined under the Ordinance. In essence this raises questions as to what is ethical or unethical behaviour. The amendment appears to have defined this with reference to the value judgements of those individuals who sit on panels to adjudicate the behaviour of professional's whose conduct is called into question.
The Council considers it is important that the definition of ethical behaviour is not skewed towards narrow interests that might exist within the confines of professional associations. It is evident that members of professions will be the most qualified to provide advice on the particular aspects of their profession, for example in the case of notaries public it would be matters such as legal procedure. However, the provision of advice on what constitutes ethical behaviour is something that should be determined by reference to the values of the wider community.
Whether conduct will amount to 'professional misconduct' is therefore not something that should be solely determined by professional colleagues. It should be subject to the perception of a wider group which comprises both lay persons and professionals, and which recognises the views of the wider community. The Council considers that this approach is preferable to the narrow scope of interest that could arise where a person is judged solely by peers, or where peers make up the majority members of a disciplinary panel.
Where there is a need for specialist technical knowledge on legal procedure, for example, specialists can be brought in as required. Technical knowledge is, in effect, only required on a needs basis depending on the nature of a complaint.
Under the current proposals complaints about the conduct of notaries public go through a number of stages:
- * A complaint screening stage where preliminary fact-finding and evaluation is undertaken by the Council of the Society of Notaries under sub section 40H (1) prior to referral to the Tribunal Convenor in order to constitute a Notaries Public Disciplinary Tribunal (the Disciplinary Tribunal).
- * Where a complaint is not referred to the Disciplinary Tribunal, a right of appeal to the Chief Justice under sub section 40H (2).
- * The constitution of a Disciplinary Tribunal from members of the Notaries Public Disciplinary Tribunal under sub section 40I (1).
- * The complaint hearing stage where disciplinary proceedings are held orders may be issued under section 40J.
- * Appeal provisions under section 40M.
It is at the complaints screening stage, and the complaint hearing stage that the Council suggests the principle of having the perception of a wider group of persons comprising both lay persons and professionals, and which recognises the views of the wider community should be maintained.
However, under the current proposals the parties undertaking the screening, i.e. the members of the Council of the Society of Notaries, are not comprised of members of the wider community, and a majority of professional members comprises the Disciplinary Tribunal.
Notwithstanding the right to seek the Chief Justice's intervention under sub section 40H (2) a decision to dismiss a complaint at the screening level, particularly where it involves the question of 'ethical behaviour', could lead to the perception that the views of the wider community have not been reflected. Moreover, even when a case has gone to a Disciplinary Tribunal, the imbalance between professional members and lay persons could raise suspicions that the complaint has not been considered on the basis of wider community values. Such values would be reflected, or at least seen to be reflected through the power exercised by lay persons on the Disciplinary Tribunal.
Other complaints handling mechanisms in Hong Kong, for example, the Copyright Tribunal, the Independent Police Complaints Council, and the Complaints Panel under Insurance Claims Complaints Bureau, are either structured as an independent body (of either judge or non-industry related members), or consist of over 50% public membership.
The Council suggests that to ensure a balance between the profession and the wider community is maintained, the percentage of public membership in the screening of complaints and the disciplinary process should be at least 50%. In practice, this would require some rules to be introduced that
- * require the Council of the Society of Notaries to establish a complaints screening panel with appropriate levels of wider community membership; and
- * that the ratio between professional and lay members of the Disciplinary Tribunal be changed.
