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