Bar Council's Views on the Final Report on Review of Legal Education & Training

Control on the numbers

1. The Bar acknowledges that there is a wide spread belief,
particularly amongst the very junior barristers, that there is an oversupply
of barristers, in consequence of which there is very keen competition
amongst the juniors for work. The over competition amongst young barristers
would lead to a reduction in income of young barristers and may indirectly
deter students from joining the Bar.

2. Notwithstanding the said concern, it is felt that
the real problem for many very junior barristers lies in the downturn
of the economy. Broadly speaking, the Bar Council agrees with the views
expressed in the Report that there should not be any mechanisms along
the way in the legal education and training system to artificially control
numbers. The Bar Council would, however, favour a system involving some
form of assessment at entry level which is purely merits-based, whereby
through the setting and enforcement of high standards, only those who
could achieve the requisite level of proficiency would be able to join
the legal profession. In addition the Bar believes that free and fair
competition will safeguard and improve the standard of the Bar. In this
way, the Bar will have a constant supply of good and competent barristers
and those who are not able to survive the competition, regardless of their
years of seniority, will be eliminated.

Language

3. The Bar agrees that the command of the English language
for many of the Post Graduate Certificate in Laws (PCLL) graduates is
not up to the required standard. While Chinese is an official language
of the law in Hong Kong, plainly English remains the more important language
in many aspects of the law. Indeed, if Hong Kong is to remain a financial
centre and a cosmopolitan city, those engaged in the supply of legal services
in Hong Kong must have a good command of the English language.

4. The Bar is in full support of raising the entry requirement
so that the minimum grade in the Use of English Examination (UEE) for
entrance to the LLB course should be C5 instead of D7, although the Bar
is not against the idea of leaving the universities with some discretion
to admit those who could show that their score in the UEE is accidentally
low.

5. It must be pointed out that at present, many candidates
for the PCLL course are graduates from overseas universities. One cannot
just assume that law graduates from an overseas university would necessarily
be better in their command of the English language than those who seek
to take their LLB degree in Hong Kong. In fact Hong Kong could have very
little control over the admission criteria of law degree courses of overseas
universities.

6. While the Bar is not opposed to the idea of having
a Use of English in Law Test (UELT) as proposed in the Report, the Bar
considers that so long as a candidate has demonstrated his English language
ability by passing a specially designed English language test once during
the whole course of the academic stage of the legal education, there should
be no need for any repeated test. The downside of having too many language
tests is that the students would inevitably have to spend time and attention
to prepare for such tests. This would take away time from their legal
studies.

7. This UELT should also be applicable to those having
a law degree from an overseas university seeking to qualify by taking
the PCLL course (or the Legal Practice Course (LPC) as proposed in the
Report).

8. The Bar considers any English course available to
the LLB students should be remedial in nature and should not be counted
as part of the LLB degree curriculum. The Bar does not see any need for
any English for Legal Purposes courses in the LLB curriculum. If a student
has a good command of the English language he should be able to apply
his language ability to legal concepts and should be able to express himself
well. Those who have a good command of the language generally and yet
are unable to express themselves well in legal matters, are likely to
be inadequate in their analytical power, or to be confused in their thoughts
or legal concepts.

9. The Bar considers that the question of making English
one of the criteria for assessment of all oral and written assessable
work must be approached with care. To the extent that the expressive power
of the student concerned is such that he could not put through his points
clearly and cogently, that must inevitably have a negative effect in the
assessment. However, there is no reason for upgrading an assessment simply
because of the excellence in the language employed.

10. While it is probably not practical to make Chinese
a compulsory subject in the entrance requirements for the LLB or PCLL,
in admitting students for the LLB or PCLL, the universities should consider
giving priority to those having a good score in Chinese when other things
are equal.

The academic stage

11. The Bar understands that even currently the students
in the LLB programme of the 2 universities would also take on some non-law
subjects. This is on top of the course designed for the language skills
of the students.

12. The Bar notes that in the Report, it is recommended
that the LLB degree be extended to be a 4-year degree course. It is also
recommended that the course is to contain non-law subjects, which should
represent one quarter of the credit load for the degree. While the Bar
fully appreciates the benefit in broadening the students' perspective
and promotion of their curiosity from their one year study of non-law
subjects, the Bar is concerned that this arrangement would effectively
mean that the actual period for legal study would be reduced to 3 years.
Bearing in mind that the proposal in the Report is that the vocational
stage is to be the 4 months intensive LPC and the 1 year pupillage (or
20 months trainee period for solicitors), and this LPC training is to
be concentrated on the application of legal knowledge and skill, it would
mean that the students would only have 3 years to acquire all the necessary
legal knowledge to enable them to go through the LPC and pupillage (or
trainee period). The Bar has reservations on whether the students could
be sufficiently equipped with all the necessary legal knowledge and legal
foundation trainings within 3 years.

13. The position would not be much different even if
the LPC proposal is not adopted. The response from both universities is
that the PCLL programme be reformed, and it is anticipated that a large
trunk of the legal knowledge teaching in the existing PCLL programme would
be transferred to the LLB course. This would further increase the pressure
to cover law subjects in the LLB curriculum.

14. Thus whether the LPC is to be adopted or not, it
is considered that it is highly desirable that the LLB course be extended
to be a 4-year degree course. However, even if it were extended, the Bar
would not support the idea that it should be compulsory that one quarter
of the curriculum should be devoted to non-law subjects.

15. It should be made clear that the Bar is not against
the idea that the LLB curriculum may contain some non-law subjects. Since
the LLB course is not confined to the training of practising lawyers,
the Bar is wholly in favour of the idea that there should be a wide range
of subjects open to the students. It is, however, common sense that in
order to award a law degree to the student, the major subjects taken in
the degree course must be related to law, and it would also make sense
that there should be some compulsory subjects which must be taken by all
LLB students. On top of that, there must be some prescribed core subjects
which must be taken by all students who would like to proceed to the vocational
stage of their trainings to become practising lawyers. These core subjects
could be of a wider range than the compulsory subjects in the LLB course.
Whether these core subjects are to be prescribed by the Legal Qualifying
Council (LQC) or by some other body is not material. There is certainly
a case to say that after so many years, there should be a review as to
whether the areas of knowledge of the current PCLL should continue to
be the compulsory core for the purposes of professional qualification.

16. Hence the Bar's view is that the LLB should provide
a wide range of legal subjects and the curriculum may also allow the students
to take some non-law subjects. However, in order to proceed to the vocational
stage of their trainings, the students must have taken the prescribed
core subjects. Apart from the core subjects, the students should also
be encouraged to take elective subjects which would assist in their future
career as practising lawyers. For instance, those who would like to specialize
in commercial law should be allowed a choice of subjects such as insurance,
admiralty law and carriage of goods by sea or by air etc., and courses
on the law of patent, copyright, trade mark and industrial design should
also be available to those who would like to specialize in intellectual
and industrial property. Of course for students who would like to have
an LLB degree as part of their liberal education only, provided that they
have taken all the LLB compulsory subjects, there could be no objection
to their not taking all the core subjects and it would be open to them
to take as many non-law subjects as the rules of the university would
permit.

17. In principle the Bar has no objection to the universities
providing mixed or double degree courses. Also the Bar would have no objection
to the universities providing part-time LLB degree courses. However, the
bottom line must be that for those who would like to enter into the vocational
stage of their legal education to be qualified to practise law, they must
take and pass all the compulsory LLB subjects and also the prescribed
core subjects.

18. The Bar has reservations on the criticism of the
primary use of lectures and tutorials in the existing system of teaching
and learning. The Bar considers that if the size of the tutorials could
be reduced to say 6 to 8 students per group, there is no reason why active
or interactive learning could not be effected in tutorials.

19. While the Bar would agree that in assessing the students'
achievement, the area of assessment should include the students' capacity
to think logically, critically and where appropriate also creatively and
also on the students' ability to analyse legal problems and to understand
the rationale of the law, the Bar would not agree that the students should
not be assessed on their ability to recall basic and important legal principles
and knowledge. The Bar takes the view that while it is more important
for the students to be able to analyse the legal problems properly than
to be able to memorize the law, it is nevertheless still essential that
students should be able to carry in their heads enough legal knowledge
before there could be any meaningful training on legal skills and application
of legal knowledge at the next stage of their legal education.

20. The Bar would also welcome the universities continuing
to offer part time LLM courses on a wide range of subjects. This would
give a good opportunity to qualified practitioners to study those subjects
that they want to specialize in.

The vocational stage

The abolition of the PCLL

21. The Bar is in general agreement with many of the
concerns expressed in paragraph 8.1.3 of the Report. Also, the Bar agrees
with the comment in the Report that at present, "in reality the PCLL,
particularly at HKU, is primarily an additional year of law studies -
with a distinct academic emphasis in its goals, content, teaching method
and assessment". The Bar has had the opportunity of studying the
teaching materials in the PCLL courses at HKU and found that in fact a
very sizeable part of the materials were directed at the teaching of substantive
law, rather than at the practical application of the law. However, the
Bar is convinced that the main reason for this heavy substantive law loading
in the PCLL programme is due to the students' inadequacy of knowledge
of the relevant substantive law. The Bar takes the view that it is not
meaningful to start teaching lawyering skills or the practical application
of the law, if the students do not possess the necessary legal knowledge.
A lot of the problems and complaints against many newly qualified practitioners,
spring from their inadequacy of legal knowledge and not from their poor
lawyering skills.

22. The problem could not be removed just by reducing
the substantive law contents of the PCLL courses nor by simply abolishing
the PCLL altogether. If the substantive law contents in the PCLL are to
be reduced, then there must be a corresponding increase in the contents
in the LLB courses. This could not be achieved without lengthening the
LLB courses and certainly making it compulsory for LLB students to take
on other non-law subjects would not be conducive to the goal of removing
the substantive law contents from the PCLL courses and transferring them
to the LLB courses.

23. Another reason for the failure of the current PCLL
programme is that the courses are too ambitious. The courses are aimed
at giving a common training for both barristers and solicitors. The consequence
is that the students would be under very heavy pressure and they would
have to take some subjects which are quite unnecessary for their intended
future career. For instance, there is hardly any justification for PCLL
students intending to become barristers, to take courses on accounts,
the drafting of wills or other commercial contracts, or to learn the details
of conveyancing and registration procedures.

24. The Bar is glad to know that the universities are
now proposing some major reform of their respective PCLL programmes. The
Bar does not consider that the PCLL could not be reformed so as to meet
the need of the modern legal education in Hong Kong. Of course insofar
as the reform of the PCLL programme would involve the reduction of the
substantive law contents of the programme, there must also be a corresponding
adjustment of the courses in the LLB programme too.

25. Before the universities are given the full opportunity
of implementing their reform programmes, the Bar would take the view that
it is premature to decide on the complete abolition of the PCLL. However,
the Bar takes a firm view that in order to meet the modern demands in
Hong Kong, it is inevitable that there should be a separation in the training
of barristers and solicitors at the early vocational stage. In fact the
division in training could well take place even at the LLB stage by allowing
the students a choice of elective subjects.

26. As mentioned, one of the main criticisms of the existing
PCLL is the failure to equip students with sufficient lawyering skills
for their entry into the legal professions. In setting the standards of
such lawyering skills and in the actual training thereof, the Bar believes
that active and effective participation of the legal professions is essential.
The division of the training of barristers and solicitors during the vocational
stage will also help in ensuring such support from the professions. The
practitioner-to-student ratio will be altered to a manageable level so
that sufficient individual attention will be given to the students, without
at the same time imposing an unrealistic demand on busy practitioners.

Pupillage

27. The Bar has given serious consideration to the views
expressed in paragraph 8.2 of the Report. Notwithstanding that it would
appear to be the trend of many jurisdictions including England that there
should be some sort of institutionalized pupillage training, and notwithstanding
that such institutionalized training has its definite advantages, especially
when it comes to matters of quality control of the standard of the training,
the Bar takes the view that at present, there is no need for any major
change in the pupillage arrangement in Hong Kong, nor is it practical
to do so.

28. The present pupillage arrangement is very much a
personalized arrangement between the pupil master and the pupil, and in
the overwhelming majority of cases, a very close and personal relationship
is developed between the pupil master and the pupil. The sort of things
that a pupil may learn from his pupil master would often far exceed what
could be expected to be set out in any check list of topics to be covered
during pupillage.

29. The Bar appreciates that the position in England
is now quite different. First in England, it is now mandatory that pupils
should be paid by the set of chambers accepting the pupil. In a loose
sense, the set of chambers is treated very much like a firm having the
responsibility of educating the pupil. With this arrangement, it is more
practical for the Bar Council in England to lay down a check list of topics
in the area of practice which must be covered by the pupil, as it is reasonable
to expect that within the set of chambers, there would be a sufficient
variety of work covering the whole range of the required topics during
the pupillage period to enable the pupil to have exposure to all the topics.
The position in Hong Kong is different in that the chambers system is
not well established. It is sometimes difficult to expect that a pupil
master or even a small set of chambers would have the full range of the
variety of work during the pupillage period to enable a pupil to have
exposure to every item in any meaningful check list.

30. The compulsory Advanced Legal Education (ALE) programme
for pupils is designed partly to ensure that all pupils must have at least
the minimum amount of exposure on all essential areas of practice as a
supplement to their pupillage.

31. Although there is no mandatory requirement under
existing legislation or the Code of Conduct to regulate what specific
areas of practice should be covered in pupillage, it is the standing recommendation
of the Bar Council that unless there are exceptional circumstances, each
pupil should serve at least 3 months' pupillage in civil practice and
3 months' pupillage in criminal practice. This recommendation is designed
to ensure that every newly qualified barrister would at least have a minimum
amount of practical knowledge on both civil and criminal practice. Further,
the log book kept by the pupil would also be reviewed by a special sub-committee
of the Bar Council. Again, while there is no mandatory rule that a pupil
must have covered a specified list of topics in any particular area of
practice, if the sub-committee should find that the topics covered by
the pupil are insufficient, the Bar Council has the power to require an
extended period of pupillage to be done.

32. The Bar Council will review from time to time the
need for any improvement on pupillage arrangement.

Compulsory ALE for all barristers

33. The Bar agrees with the view that to meet the challenge
ahead, the Bar as a whole would have to be committed to lifelong learning.
Indeed, it has always been the key to the success of the Bar that its
members are constantly improving themselves both in their legal knowledge
and also in their legal skill.

34. The Bar believes that fair competition is the best
guarantee of the quality and standard of the Bar, and to survive in the
Bar any barrister would have to constantly update and improve himself
through self learning.

35. It has to be pointed out that the position in Hong Kong is that the
Bar keeps an open door to international talents in the sense that if there
is a demand for expertise which is not available locally, there is power
on the part of the Court to admit overseas barristers, usually leading
counsel from England, to conduct the cases. The stance of the Bar has
always been that if such a case is made out, the Bar would invariably
consent to such admission. The usual practice is that where this happens,
there would normally be a local junior counsel being instructed in the
same case, and through the teamwork with the overseas experts, the expertise
is also transferred. Indeed in this way, and through the self learning
of the members, the Bar in Hong Kong has over the past years built up
a substantial body of expertise.

36. The Bar has given careful consideration to the views
expressed in paragraphs 13.1 to 13.4 of the Report. However, the Bar has
come to the view that at the present stage, there is no demand either
from within the profession or from outside the profession for any mandatory
ALE programme for the Bar as a whole. The Bar will review the question
of compulsory ALE for all barristers from time to time.



Dated this 30th day of November 2001.



The Hong Kong Bar Association