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New Admission Criteria for Barristers
Explanation of the changes
A new system of admission of barristers came into force on 28 March 2003. That was the date appointed by the Secretary for Justice for the commencement of the remaining provisions of the Legal Practitioners (Amendment) Ordinance 2000 (Amendment Ordinance). The commencement date was synchronized with the commencement of the Barristers (Qualification for Admission and Pupillage) Rules (Qualification and Pupillage Rules), Barristers (Advanced Legal Education Requirement) Rules, Barristers (Admission) Rules, Legal Practitioners (Fees) (Amendment) Rules and Practising Certificate (Barristers) (Amendment) Rules. These rules set out in detail the admission requirements and procedures under the new system. The major changes brought about by the Amendment Ordinance and the new rules are outlined below.
General Admission Criteria
The Amendment Ordinance, which was passed in June 2000 to amend the Legal Practitioners Ordinance (Cap 159) (Ordinance), made major changes to the law governing the admission of barristers in Hong Kong. Privileges formerly conferred by the Ordinance upon barristers and advocates from England, Scotland, Northern Ireland and other Commonwealth countries were inconsistent with Hong Kong’s general obligations as a member of the World Trade Organisation (WTO). The General Agreement on Trade in Services (GATS) requires admission criteria to be objective, reasonable, non-discriminatory and standards-based.
The new s 27 of the Ordinance, which governs the power of the Court to admit barristers, allows the Court to admit a person who is considered a fit and proper person to be a barrister provided such person has (a) complied with the requirements; (b) passed the examinations; and (c) paid the fees, prescribed by the Bar Council. A person seeking admission as a barrister would also need to satisfy a residency requirement that he has resided in Hong Kong for at least 3 consecutive months immediately before the date of his application for admission;he has been ordinarily resident in Hong Kong for at least 7 years; or he has been physically present in Hong Kong for at least 180 days of each of at least 7 years within the 10 years immediately preceding the date of his application for admission.
Overseas lawyers from non-Commonwealth jurisdictions, who were previously denied a channel to gain admission as barristers in Hong Kong, may seek admission as a Hong Kong barrister, irrespective of the jurisdictions they come from, provided that they satisfy all the requirements for general admission, such as residency, examination and pupillage set out in the Qualification and Pupillage Rules.
The detailed requirements prescribed by the Bar Council relating to admission are set out in the Qualification and Pupillage Rules. Section 4(1) of the Qualification and Pupillage Rules specifies that a person is qualified for admission as a barrister under s 27(1) of the Ordinance if he –
(a)has obtained a Postgraduate Certificate in Laws;
(b)has been admitted as a solicitor in Hong Kong for at least 3 years either immediately or in any case not more than 12 months before the date of his application for admission and during that time he was in practice as a solicitor in Hong Kong or was employed in the public service of the Government as a legal officer within the meaning of the Legal Officers Ordinance (Cap 87); or
(c)is an overseas lawyer who satisfies the requirements specified in sub-s (2).
Section 4(2) of the Qualification and Pupillage Rules provides that an overseas lawyer is qualified for admission as a barrister if he –
(a)holds a certificate of admission as a legal practitioner from the appropriate authority in his jurisdiction of admission and such certificate of admission is valid and currently in force;
(b)has practised for at least 3 years in his jurisdiction of admission;
(c)is a person of good standing in his jurisdiction of admission; and
(d)has passed the Barristers Qualification Examination (Examination).
The Examination is administered by the Bar Council and, commencing from 1 January 2004, will be held once a year. The Examination consists of five examination papers covering subjects on 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, and Professional Conduct and Advocacy.
An overseas lawyer whose jurisdiction of admission is a common law jurisdiction is exempt from sitting the paper on Contract and Tort. The Bar Council may exempt overseas lawyers from sitting certain examination papers depending on whether they have substantial experience in the relevant law.
Section 4(3) of the Qualification and Pupillage Rules provides for the pupillage requirements for general admission which will later be explained in greater detail.
Other issues relating to the repeal of ss 27 and 27A of the Ordinance
Two other issues arose in connection with the implementation of the new admission criteria. The first was the effect that the repeal would have on Hong Kong students who are pursuing a law course provided by institutions in the United Kingdom.
In order not to adversely affect law students who would otherwise be entitled to apply for admission under the repealed s 27, the new s 74C of the Ordinance has a transitional arrangement for persons who were about to commence their law study, or have been studying law, in the United Kingdom, or a United Kingdom external law course in Hong Kong, as at the date of gazettal of the Amendment Ordinance, ie, 30 June 2000. Such students can be admitted under the old admission system provided that they are qualified for admission and have been called to the Bar in England or North Ireland, or admitted as an advocate in Scotland, and make their application for admission in Hong Kong not later than 31 December 2004.
The second issue relates to those counsel in the Department of Justice who are qualified to rely on the repealed s 27A of the Ordinance. The effect of the repealed s 27A was to allow lawyers from certain common law jurisdictions, namely Australia, Canada (except Quebec), New Zealand, the Republic of Ireland, and Zimbabwe, to gain admission in Hong Kong, subject to qualifying conditions provided in the section.
The new s 74D of theOrdinance enables those counsel in the Department of Justice, who are qualified to rely on the repealed s 27A for admission as at the date of commencement of the Amendment Ordinance, to continue to do so. However, they will no longer be required to leave government service and commence private practice within 12 months of their admission.
Ad hoc Admission
Under the new admission system, the Court has the power to admit barristers from overseas on an ad hoc basis without the need to satisfy the requirements for general admission such as residency, examination, and pupillage, provided that the person is considered a fit and proper person to be a barrister and it is satisfied that he has –
(a)the qualification acquired outside Hong Kong to engage in work that would, if undertaken in Hong Kong, be similar to that undertaken by a barrister in the course of ordinary practice as a barrister in the High Court or Court of Final Appeal; and
(b)substantial experience in advocacy in a court.
The major change from the old admission system is that ad hoc admissions are no longer restricted to barristers or advocates from England, Scotland and Northern Ireland.
Pupillage
Under the old admission system, a person satisfying the repealed s 27 of the Ordinance could be called to the Bar immediately prior to starting his/her pupillage.
According to the new requirements under s 4(3) of the Qualification and Pupillage Rules, a person must have completed not less than six months of the period of approved pupillage before seeking admission as a barrister. In order to practise, however, he or she must undertake pupillage for a further six months, during which time he or she has a limited right to practice.
Mandatory Advanced Legal Education Programme for Pupil Barristers
All pupil barristers are required under the Barristers (Advanced Legal Education Requirement) Rules to complete the Advanced Legal Education (ALE) Programme. They must attend ALE courses and obtain a total of 14 ALE points during their period of approved pupillage. This programme of compulsory legal education focuses on advocacy and drafting, and provides an efficient way for pupil barristers to obtain and improve their professional skills.
Where pupil barristers fail to undertake and complete the ALE programme, the Bar Council may refuse to extend the validity of any limited practising certificate, refuse to issue a new limited practising certificate or defer the issue of a practising certificate until the pupil barrister has completed the ALE programme.
Conclusion
The recent changes to the admission criteria for barristers and the commencement of the new provisions represent a significant step towards the opening up of the Hong Kong legal services market.The legislation governing the supply of legal services by both solicitors and barristers in Hong Kong has become fully compatible with our GATS and WTO obligations.
Department of Justice
May 2003