LC Paper No. LS 219/98-99
Paper for the House Committee MeetingObjects of the Bill
of the Legislative Council
on 2 July 1999
Legal Service Division Report on
Legal Practitioners (Amendment) Bill 1999
To make amendments to the Legal Practitioners Ordinance (Cap. 159) ("the Ordinance") :
1. in relation to solicitors, to -
- clarify that all partners of a Hong Kong firm must be enrolled on the roll of solicitors, and not just those resident in Hong Kong;
- provide for the appointment and powers of a prosecutor to assist the Law Society in gathering evidence in its investigations;
- double the number of solicitors and lay persons eligible to be appointed to the Solicitors Disciplinary Tribunal Panel ;
- give the Council of the Law Society power to appeal against a decision of the Solicitors Disciplinary Tribunal;
- empower the Solicitors Disciplinary Tribunal to publish a summary of its findings and order in any publication produced by the Law Society;
- require a solicitor to satisfy the qualifications to practise as a solicitor before he can be a practitioner of foreign law;
2. in relation to barristers, to -
LegCo Brief Reference
- repeal and substitute the conditions for admission of barristers;
- provide a mechanism for removing a person's name from the roll of barristers;
- remove the requirement for barristers to apply in November for a practising certificate and require payment of premium prescribed for professional indemnity insurance before the issue of such certificate;
- enable an employed barrister who holds an employed barrister's certificate to instruct a practising barrister without retaining a solicitor for the purpose of obtaining a legal opinion; and
- empower the Bar Council to make rules, with the prior approval of the Chief Justice, including prescribing the requirements for admission of barristers and the fees therefor as well as the fees for the issue of practising certificates.
2. LegCo Brief File Ref. LP 272/00 issued by the Department of Justice in June 1999.Date of First Reading
3. 30 June 1999.
4. Clause 7 of the Bill proposes to repeal and substitute section 27 of the Ordinance with regard to the power of the Court of First Instance to admit barristers. The new section 27 would :
- remove the right of UK barristers to be admitted in HK on the basis of their UK status;
- give the Bar Council the power to prescribe the requirements for admission of all barristers; and
- require that a person must have resided in Hong Kong for at least 3 consecutive months immediately before the date of his application for admission.
5. The Bar Association considers that the proposed residency requirement too short and suggests a period of 6 consecutive months. In light of the removal of right of UK barristers to seek admission on the basis of their UK status, the Bar proposes to repeal the additional power of the court under the existing section 27A of the Ordinance to admit barristers of Commonwealth jurisdictions who have been employed in the Department of Justice for 7 years. In relation to admission of barrister for the purpose of any particular case or cases under the new section 27(4), the Bar holds the view that the applicant must have actual advocacy experience of at least 10 years.
6. Clause 12 of the Bill proposes to add a new section 31C to the Ordinance to enable an employed barrister who holds an employed barrister's certificate to instruct a practising barrister without retaining a solicitor for the purpose of obtaining a legal opinion. The Law Society has no objection to this proposal, but is concerned that the issue of employed barrister's certificates would lay a foundation for employed barristers to demand the Bar Association in future to change its code to allow them to do work which might otherwise be exclusive to solicitors.
7. Clause 15 of the Bill proposes to add section 72AA to the Ordinance conferring power to the Bar Council to make rules. The Legal Service Division notes that certain powers would duplicate the power of the Chief Justice to make rules under section 72 and 72A of the Ordinance and would seek clarification from the Administration.
8. The Law Society and the Bar Association have been consulted and their main objections are set out above. Representatives of the Law Society and the Bar Association have also attended a meeting of the LegCo Panel on Administration of Justice and Legal Services on 27 May 1999 to express their views when the Administration briefed members on the Bill.
9. The Legal Service Division would seek clarification on the legal and drafting aspects of the Bill. In the meantime, Members may consider setting up a Bills Committee to study the Bill in detail.
Wong Sze-man, Bernice
Assistant Legal Adviser
Legislative Council Secretariat
28 June 1999