Legalprofessions
5.1 Lawyersinprivatepractice
Article 94 of the Basic Law provides that the Government of the HKSAR may make provisions for local lawyers and lawyers from outside Hong Kong to work and practise in the HKSAR on the basis of the system previously operating in Hong Kong.
As in many common law jurisdictions, the legal profession in Hong Kong is divided into two branches: solicitors and barristers. This division is maintained after the transfer of sovereignty. In general, barristers specialise in advocacy and legal advice while solicitors are mainly responsible for paperwork such as contracts, property transfers, business transactions and matrimonial matters. Solicitors usually join law firms as salaried personnel or as partners though they may also practise as sole proprietors. The legislation allowing solicitors to practise within solicitor corporations has been passed but it is not yet in force.108 However, barristers cannot enter into any partnership with others and must be self-employed though they can associate with other barristers in chambers, sharing overhead costs for their law offices. Another major difference is their rights of audience in courts. Barristers have unlimited rights of audience in any court in Hong Kong, while solicitors only have rights of audience in Magistrates’ Courts and the District Court, and in chambers hearings in the Court of First Instance and the Court of Appeal.109
The legal professions are self-regulated. The Bar Association is the profesÂsional body for barristers and the Law Society of Hong Kong is the professional body for solicitors. The professional bodies are responsible for prescribing rules of professional conduct, discipline and etiquette for their members. Barristers and solicitors allegedly breaching their codes of conduct may be referred to disciplinary hearing.
To practise in either branch of the legal profession in Hong Kong, the first requirement is to obtain admission to the one-year course leading to the PostÂgraduate Certificate in Laws (PCLL), offered by the three institutions in Hong Kong.110 The main route to gaining this qualification is to obtain a Bachelor of Laws degree or equivalent qualification111 from a university in Hong Kong.112 If one holds a Bachelor of Laws degree in common law from a Commonwealth
ofthe HongKong SpecialAdministrative Region under the Special Committee ofthe National People’s Congress, adopted at the Third Session of the Seventh National People’s Congress on 4 April 1990; and Proposal by the Drafting Committeefor the Basic Law ofthe Hong Kong Special Administrative Region onthe Establishment of the CommitteefortheBasicLaw oftheHongKongSpecialAdministrativeRegion underthe Special Committee of the National People’s Congress.
108 The Legal Services Legislation (Miscellaneous Amendments) Bill was passed in June 1997.
109 FinalReportofWorkingPartyon SolicitortRightsofAudience (November2007) Judiciary [ofthe HKSAR].
110 They are The University of Hong Kong, The Chinese University of Hong Kong and City University of Hong Kong.
111 Bachelor of Laws double degrees and the Juris Doctor degree.
112 There are three universities in Hong Kong which offer the Bachelor of Laws degree. They are The University of Hong Kong, The Chinese University of Hong Kong and City University of Hong Kong. universityor comparable institution,113 competence in a list of core subjects must be demonstrated.114 Failing to do so, a person can still gain the qualification by passing the relevant subjects in the Hong Kong Conversion Examination for PCLL Admission administered by the Hong Kong Conversion Examination Board under the Standing Committee on Legal Education and Training.115 Within the list of core courses, besides the core subjects needed for legal practice in a common law jurisdiction, there are three subjects specifically on the laws and legal institutions in Hong Kong as the legal rules are unique under Hong Kong's new constitutional order.
They are Hong Kong constitutional law, Hong Kong legal system and Hong Kong land law.The second requirement is the completion of the PCLL. The training is basiÂcally the same for both branches, though students may choose electives in the program facilitating their choice of either branch of the profession. The third requirement is the completion of practical training. For those who opt to become barristers, they must serve a one-year pupillage. During this period the pupil barrister is attached to a practising barrister who provides the pupil with practiÂcal guidance and experience. For those who opt to become solicitors, they must serve two years as a trainee solicitor, during which time the trainee is attached to a practising solicitor and must obtain experience in a number of specified aspects of a solicitor's practice.
An overseas qualified lawyer admitted in a common law jurisdiction may be admitted as a solicitor in Hong Kong if he or she has satisfied academic and miniÂmum work experience requirements, and has passed subjects116 in the Overseas Lawyers Qualification Examination.117 For those who are qualified in a nonÂcommon law jurisdiction, they have to satisfy more stringent academic requireÂments and minimum work experience requirements. They are also required to pass more subjects in the Overseas Lawyers Qualification Examination. To be admitted as barrister in Hong Kong,118 an overseas lawyer must have been in practice for at least three years in the jurisdiction of admission and passed the Barristers Qualification Examination.119
A lawyer qualified in other jurisdictions can offer legal services to the public as a practitioner of foreign law on the condition he or she registers with the Law Society of Hong Kong as a foreign lawyer.120 A registered foreign lawyer cannot
113 If a person passed the Common Professional Examination of Hong Kong or of England and Wales and obtained at least a second-class honours degree in a discipline other than law, he or she may partly satisfy the requirement.
114 These subjects include constitutional law, contract, criminal law, land law, tort, equity, civil procedure, criminal procedure, evidence, business associations, commercial law, Hong Kong constitutional law, Hong Kong legal system and Hong Kong land law.
115 A statutory committee constituted under s 74A of the LegalPractitioners Ordinance, Cap 159.
116 Conveyancing, commercial and company law, and accounts and professional conduct.
117 OverseasLawyers (QualificationforAdmission) Rules, LegalPractitioners Ordinance, Cap 159.
118 Barristers (Qualification forAdmission andPupillage) Rules, LegalPractitioners Ordinance, Cap 159.
119 They must have studied the following subjects: contract, tort, property law (including real and personal property), conveyancing, equity (including the law of trusts), criminal law, criminal procedure and criminal evidence, Hong Kong legal system and constitutional and administrative law, company law, civil procedure and civil evidence, professional conduct, and advocacy.
120 LegalPractitioners Ordinance, Cap 159,ss 39Aand 50B; ForeignLawyersRegistration Rules, LegalPracti- tioners Ordinance, Cap 159.
practise Hong Kong law but he or she can be employed by a Hong Kong solicitor as a foreign legal consultant. There is a limitation that the number of Hong Kong solicitors must exceed that of foreign lawyers in a law firm.
5.2 Judges
According to the Basic Law, judges of the courts of the HKSAR are appointed by the Chief Executive on the recommendation of an independent commission[238] composed of local judges, persons from the legal profession and eminent persons from other sectors.[239] The professional qualifications ofjudges at all levels require the person to be qualified to practise as a barrister, solicitor or advocate in a court in Hong Kong or any other common law jurisdiction having unlimited jurisdiction either in civil or criminal matters and have practised in the private or public sector as a legal professional for a prescribed period.[240] There is no requirement in respect of the nationality of a judge except for the Chief Justice of the HKCFA and the Chief Judge of the High Court of the HKSAR. They must be Chinese citizens who are permanent residents of the HKSAR with no right of abode in any foreign country.
The HKCFA may invite judges from other common law jurisdictions to sit as non-permanent Hong Kong judges. There can only be one non-permanent Hong Kongjudge in a hearing of the HKCFA.[241]As stated above, to ensure judicial independence, members of the judiciary are immune from legal action in the performance of their judicial functions.[242] A judge of a court of the HKSAR may only be removed for inability to discharge his orher duties, orfor misbehaviour, by the ChiefExecutive on the recommendation of a tribunal appointed by the Chief Justice of the HKCFA and consisting of not fewer than three local judges.[243] If it is the Chief Justice of the HKSAR to be investigated, the tribunal will be appointed by the Chief Executive and consist of not fewer than five local judges. The Chief Justice maybe removed by the Chief Executive on the recommendation of the tribunal.
The appointment or removal of judges of the HKCFA and the Chief Judge of the High Court of the HKSAR needs the endorsement of the LegCo. Also, the appointment or removal must be reported to the SCNPC for the record.[244]
5.3 Prosecutors and other government lawyers
The Basic Law provides that the DOJ controls criminal prosecutions, free from any interference.[245] The Head of the DOJ is the Secretary for Justice. He or she is one of the principal officials who needs to be nominated by the Chief Executive and appointed by the CPG.[246] The Secretary for Justice stands, for all practical purposes, in the same position as did the Attorney-General of Hong Kong in relation to the Government of Hong Kong prior to the resumption of the exerÂcise of sovereignty by the PRC in 1997.[247] The Director of Public Prosecutions, head of the Prosecutions Division of the DOJ, is responsible to the Secretary for Justice for directing public prosecutions. The Secretary for Justice is responÂsible for formulating prosecution policy and supervising the Director of Public Prosecutions and those who prosecute in Hong Kong.
In addition to prosecuÂtion, the DOJ is responsible for drafting all government legislation and advising government departments on different legal issues. Other government departÂments also employ lawyers to provide specialist legal services in their areas of work.5.4 Academics
Hong Kong has three universities offering legal training for students seeking to qualify to practise as legal professionals. More than one hundred law teachÂers are employed. In addition to their teaching duties, law teachers are active in conducting research and publishing their research findings in almost all areas of law in Hong Kong. The works of local and overseas legal academics (mainly from common law jurisdictions) are cited in courts and referred to in judgments.
The Basic Law protects the autonomy and academic freedom of educational institutions[248] and the protection is extended to cover teaching staff employed by the institutions.[249] Comments of law teachers in Hong Kong are sometimes highly critical of the HKSAR Government and the Chinese Government.
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