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.
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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)
(b)
(c)
has obtained a Postgraduate Certificate in Laws;
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
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)
(b)
(c)
(d)
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;
has practised for at least 3 years in his jurisdiction of admission;
is a person of good standing in his jurisdiction of admission; and
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.
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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 the Ordinance 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
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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
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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