Hong Kong’s justice minister is lobbying for her department’s legal officers to qualify for promotion to the rank of senior counsel under a proposal that has raised concerns about the wider potential for the city’s solicitors to eventually join an exclusive club open only to top barristers.
Secretary for Justice Teresa Cheng Yeuk-wah on Wednesday said she was determined to instil fairness in a system that allowed only barristers to be promoted to senior counsel and deprived solicitors in her department of the recognition they deserved.
“That’s always been troubling me for a while,” she said. “Why is it that my colleagues in the Department of Justice who are, by their qualification as a solicitor, doing very well and very efficiently with great eloquence and advocacy in the Court of Final Appeal but not being recognised when they are actually even better than their [barrister] counterparts?”
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In a letter to its members a day earlier, the Bar Association revealed that Cheng had recently proposed amending the Legal Practitioners Ordinance to change the system.
Those eligible would include the solicitor general, prosecutors, government counsel, and the department’s law draftsmen. Solicitors from the Lands Department, Companies Registry and Land Registry would be excluded.
Under the current system, Hong Kong’s chief justice can appoint barristers to take silk in recognition of their ability and standing in the profession, as well as their knowledge of law. They must have practised in Hong Kong for no fewer than 10 years in total. Solicitors are not eligible.
Barristers specialise in defending clients in the courtroom and have access to all levels of the courts, while most of a solicitor’s work is performed behind the scenes.
Solicitors are not allowed to speak on clients’ behalf before a judge above District Court level, unless they have acquired a special qualification, known as higher rights of audience.
However, such restrictions do not apply to Department of Justice lawyers, who are allowed to present arguments at all levels of court without any distinction between barrister and solicitor roles.
That prompted Cheng, a senior counsel herself, to challenge the existing system denying such a promotion track for the justice department’s legal officers.
The contentious idea was floated after Beijing in April accused Paul Harris, chairman of the Bar Association, of being an “anti-China politician”. The professional association for barristers is known for its outspoken stance on human rights issues.
Cheng sought to allay such concerns on Wednesday by making it clear that government solicitors could only hold the title of senior counsel while they were working for the administration.
“We recommend removing their titles once they leave the Department of Justice, so it would not apply to their future career in the private sector,” she said.
Cheng cited the case of solicitor and deputy director of public prosecutions Vinci Lam Wing-sai, who was appointed as senior counsel in May, only a year after qualifying as a barrister. The promotion raised some eyebrows at the time as Lam was known for successfully securing tougher punishments for young offenders convicted over the 2019 anti-government protests.
In a recent meeting with the Law Society, Cheng was said to have taken issue with the fact that Lam was required go on leave for months to become a barrister and qualify as senior counsel, even though she was a seasoned prosecutor in court as a solicitor.
“It triggered my determination to take this further forward,” she said on Wednesday. “That really showed that the formality has to be done away with.”
A senior barrister raised concern that this would trigger demands for the same privilege to be extended across the private sector.
“It could be a slippery slope,” he said, speaking on condition of anonymity because of the political sensitivity.
He argued that the unique status should be reserved for barristers because of their important societal role under the “cab-rank rule” requiring them to take up a case regardless of a defendant’s background – which does not apply to solicitors.
But Nicholas Chan Hiu-fung, a former council member of the Law Society, the city’s body of solicitors, welcomed Cheng’s suggestion, saying the justice department’s lawyers should be able to attain senior counsel status based on their ability.
Former Law Society president Stephen Hung Wan-shun said he did not see any problem with Cheng’s proposal.
The Bar Association said it considered the government proposal to be of “great importance” and warned of potentially significant ramifications for the profession as it called on members to express their views by July 9.
Anita Yip Hau-ki, vice-chairwoman of the Bar Association, said “recognisable contributions to the rule of law” and good character had been regarded as important qualities for senior counsel as “leaders of barristers”.
Former Bar Association chairwoman Audrey Eu Yuet-mee, a senior counsel who was the founding leader of the opposition Civic Party, suggested opening up such promotion prospects for legal officers was the administration’s way of encouraging them to emulate prosecutor Lam’s “confrontational” style in court.
Civic Party chairman Alan Leong Kah-kit, a senior counsel and former Bar Association chairman, saw it as an attempt to prevent a mass exodus of legal professionals from government service, which he said was doomed to fail.
“You don’t become a superman by calling yourself a superman. How naive, condescending, and conceited is the secretary for justice?” Leong said.
There are about 100 senior counsel in Hong Kong – previously named Queen’s Counsel before the city’s handover from British to Chinese sovereignty in 1997 – among some 1,500 practising barristers, according to the association.
Additional reporting by Lilian Cheng
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