Cap. 416

An Ordinance to provide for the appointment of an Official Solicitor and for related purposes. [1 August 1991] L.N. 312 of 1991(Format changes—E.R. 5 of 2018) (Enacting provision omitted—E.R. 5 of 2018) 1. Short title (Amended E.R. 5 of 2018)(1) This Ordinance may be cited as the Official Solicitor Ordinance.(2) (Omitted as spent—E.R. 5 of 2018) 2. Appointment of Official Solicitor (1) The Chief Executive may appoint an Official Solicitor. (Amended 11 of 1999 s. 3)(2) No person shall be appointed Official Solicitor unless he is qualified to be admitted as a legal practitioner in Hong Kong, or is eligible for appointment as a legal officer under section 2A of the Legal Officers Ordinance (Cap. 87).(3) In performing any duty or exercising any power under this Ordinance, a person holding appointment under subsection (1) has all the rights, powers, privileges and duties of a person admitted as a legal practitioner in Hong Kong.(4) The Public Service (Administration) Order, and such Ordinances, administrative rules and conditions of service as apply generally to public officers apply to the Official Solicitor. (Amended 11 of 1999 s. 3)(5) The expenses of the Official Solicitor shall be met from moneys provided by the Legislative Council.(6) If—(a) the Official Solicitor is not available because of his absence or for some other reason; or(b) the office of Official Solicitor is vacant,the Chief Executive may appoint a person to act as Official Solicitor during such unavailability or vacancy, and the person so appointed shall enjoy the powers and assume the duties of the Official Solicitor and may accordingly deal with any property vested in the Official Solicitor in all respects as if it were vested in him instead. (Amended 11 of 1999 s. 3)(7) Where a person holding the office of Official Solicitor dies or ceases to hold office, any property held by him in his official capacity shall vest in the person appointed to succeed him as Official Solicitor without any conveyance, assignment or transfer.(8) Notification in the Gazette that a person has been appointed to, or has ceased to hold, office under subsection (1) shall be sufficient evidence of the facts stated in the notice.(9) In this section, Public Service (Administration) Order (《公務人員(管理)命令》) means— (a) the Public Service (Administration) Order 1997 (Executive Order No. 1 of 1997); (b) the Public Service (Disciplinary) Regulation made under section 21 of that Order (and together with that Order published as S.S. No. 5 to Gazette No. 2/1997); and (c) any other regulation made or any direction given under that Order, as amended from time to time. (Added 11 of 1999 s. 3) 3. Accounts and audit (1) The Official Solicitor shall keep such accounts and records as may be necessary—(a) to show all his dealings with money held, received or paid by him on behalf of another person, and with any other money dealt with by him through the account of another person;(b) to distinguish such money held, received or paid by him on account of each individual, and to distinguish such money from other money held, received or paid by him on any other account.(2) The Director of Accounting Services may give such directions in writing to the Official Solicitor as he thinks fit with respect to the keeping of accounts and records referred to in subsection (1) and the Official Solicitor shall comply with any such direction.(3) The Official Solicitor shall prepare in relation to any moneys referred to in subsection (1) a statement of accounts of the moneys for each financial year, in such form as the Director of Accounting Services may require in writing.(4) A statement of accounts required under subsection (3) shall be signed by the Official Solicitor who shall submit such statement of accounts to the Director of Audit not later than 6 months following the end of the period to which it relates, or such later date as the Chief Executive may allow. (Amended 11 of 1999 s. 3)(5) The accounts and records referred to in subsection (1) and the statement of accounts submitted to the Director of Audit under subsection (4) shall be audited by the Director of Audit who shall certify the statement of accounts subject to such report, if any, as he thinks fit and submit the audited statement of accounts and the report, if any, to the Official Solicitor. 4. Duties of Official Solicitor (1) The duties of the Official Solicitor are—(a) to act, where so appointed by the Court, as provided in Parts 1 and 2 of Schedule 1;(b) in his discretion, to act as provided in Parts 1 and 3 of Schedule 1 where he is satisfied that the interests of justice so require and where there is no other person fit and willing so to act;(c) to act as directed by the Court in the exercise of its power under any Ordinance providing for the appointment of the Official Solicitor; and(d) to act in any particular matter where so directed by the Chief Justice.(2) In exercising his discretion under subsection (1)(b) to act in a particular matter, the Official Solicitor may—(a) act on such terms, including terms as to indemnity for costs properly incurred by him, as are appropriate in the circumstances; and(b) have regard to the funds available to meet his expenses.(3) In this section and in Schedule 1 the Court (法院) means the High Court or the District Court. (Amended 25 of 1998 s. 2) 5. Power to appoint solicitors, etc. In performing any of his duties, the Official Solicitor may appoint any person who is admitted as a legal practitioner in Hong Kong to act or conduct proceedings on his behalf in a particular case. 6. Recovery of costs (1) The Official Solicitor may charge for his services and for services provided on his behalf, and may recover such costs and disbursements as are ordered to him by a court, magistrate or tribunal or otherwise agreed.(2) Any costs or fees received by the Official Solicitor or a person acting or conducting proceedings on his behalf shall be paid into the general revenue. 7. Director of Legal Aid to be first Official Solicitor (1) Notwithstanding section 2(1), the Director of Legal Aid shall be the first Official Solicitor.(2) The expenses incurred by the Director of Legal Aid as Official Solicitor shall be met by him from moneys provided to the Director of Legal Aid by the Legislative Council for the purposes of the Legal Aid Ordinance (Cap. 91).(3) In performing any of his duties as Official Solicitor the Director of Legal Aid may appoint an officer holding office under section 3 of the Legal Aid Ordinance (Cap. 91) to act or conduct proceedings on his behalf in a particular case, and for the purpose of the Rules of the High Court (Cap. 4 sub. leg. A), and in the application of any other legislative provision as to fees and costs or the practice relating to fees and costs, such officer is deemed to have the status of a person admitted as a legal practitioner in Hong Kong. (Amended 25 of 1998 s. 2)(4) The appointment of the Director of Legal Aid under this section shall continue in effect until such time as an appointment made by the Chief Executive under section 2(1) becomes effective. (Amended 11 of 1999 s. 3) 8. Amendment of Schedule 1 The Chief Executive in Council may by order amend Schedule 1.(Amended 11 of 1999 s. 3) 9. (Omitted as spent—E.R. 5 of 2018) 10. Transfer of existing matters to Official Solicitor Where, immediately before the commencement* of this Ordinance, a public officer mentioned in column 1 of Schedule 3 was acting in any matter in the capacity or in the circumstances set out in column 2 of that Schedule, the Official Solicitor shall, as from the commencement* of this Ordinance, act in such matter in lieu of that public officer, and any property held by that public officer in so acting is transferred to and vested in the Official Solicitor as at the commencement* of this Ordinance. Editorial Note: * Commencement date: 1 August 1991. Schedule 1 [ss. 4 & 8](Amended 21 of 2020 s. 72)Duties of the Official Solicitor Part 1 1. To act as guardian ad litem or next friend to any person under a disability of age or mental capacity, in proceedings before any court. 2. To act on behalf of a person committed to prison for contempt who is unable or unwilling to apply on his own behalf for release. Part 2 1. (Repealed 81 of 1997 s. 59) 2. On appointment under the Mental Health Ordinance (Cap. 136)—(a) at section 11 or 26B, to act as committee of the estate of a mentally incapacitated person; (Replaced 81 of 1997 s. 59)(b) at section 14, to act as guardian of an infant relative or next-of-kin;(c) at section 22 or 23, to make such transfer or to receive or make such payment as may be ordered. 3. To intervene in proceedings before the Court.(Amended 25 of 1998 s. 2) Part 3 If requested by the Juvenile Court, to act for any party involved in proceedings under the Protection of Children and Juveniles Ordinance (Cap. 213) relating to the care and protection of a child or juvenile.(Amended 21 of 2020 s. 59) Schedule 2 (Omitted as spent—E.R. 5 of 2018) Schedule 3 [s. 10]Matters to be Transferred to Official Solicitor Public Officer Capacity or circumstances in whichpublic officer is acting Registrar General (a) as Official Trustee, by virtue of section 66 of the Trustee Ordinance (Cap. 29); (b) as representative of a deceased person’s estate, by virtue of an order under Order 15, rule 6A(4) of the Rules of the High Court (Cap. 4 sub. leg. A); (c) as judicial trustee, by virtue of an appointment under section 63 of the Trustee Ordinance (Cap. 29) and rule 7(1) of the Judicial Trustee Rules (Cap. 29 sub. leg. B); (d) as next friend or guardian ad litem for any person, whether by appointment under Order 80, rule 3(4) or (5) of the Rules of the High Court (Cap. 4 sub. leg. A) or otherwise. Law Officer (Civil Law) (a) in proceedings in which there has been undue delay in the prosecution of accounts or inquiries, by virtue of a direction under Order 43, rule 7 of the Rules of the High Court (Cap. 4 sub. leg. A); (b) in proceedings or inquiry under Order 62, rule 8 of the Rules of the High Court (Cap. 4 sub. leg. A), by virtue of a direction or authorization of the Court under paragraph (4) of that rule; (c) as next friend or guardian ad litem for any person, whether by appointment under rule 105(4) or 108(1) of the Matrimonial Causes Rules (Cap. 179 sub. leg. A) or otherwise. (Amended L.N. 362 of 1997; 25 of 1998 s. 2)