STANDING COMMITTEE ON LEGAL EDUCATION AND TRAINING COMPREHENSIVE REVIEW OF LEGAL EDUCATION AND TRAINING IN HONG KONG Final Report of the Consultants April 2018 Contents Overview iii 1. Introduction 1 2. The existing structure of legal education and training in Hong Kong 9 3. The reform of legal education and training: International trends and practices 31 4. The academic stage of legal education 59 5. The Postgraduate Certificate in Laws (PCLL) 79 6. The proposal for a ‘Common Entrance Examination’ 104 7. The training contract, pupillage and the overseas qualifying examinations 125 8. Conclusions and summary of recommendations 154 Bibliography 167 Annexures 185 Annex 1 – List of invited stakeholder groups/organisations Annex 2 – List of consultation responses received Annex 3 – Structure of existing PCLL courses Annex 4 – Indicative learner attributes – from LETR (2013) Annex 5 - Law Society of Scotland: PEAT1 outcomes and descriptors Annex 6 – Solicitors Regulation Authority: Legal Practice Course Outcomes (2011) Annex 7 – Observations on two centralised assessment models Annex 8 – Questions to the Law Society on the proposed PCLL Benchmark (Jan. 2018) i OVERVIEW It is not the intention of this overview that it should take the form of an "Executive Summary". No doubt, it will be treated by some as such, but the intention is that the Report should be read, albeit perhaps in stages and, possibly, with concentration on particular matters of interest. At the end of the Report there is a summary of the recommendations, but these should be read in conjunction with the relevant chapters The law has always been important in Hong Kong. Much emphasis is placed on Hong Kong's sound legal system. It is one of the aspects that mark Hong Kong. The expression the Rule of Law is one that is frequently used, and rightly so, because Hong Kong can be proud of the strength and independence of the administration of law. At the core of that is, naturally, the judiciary and legal professions. Hong Kong survives on its industries, in the broadest sense of the term, whether that be trading, transport, financial, legal services and others. If it had not been for the law and the way it has been administered those industries would not have thrived or, indeed, survived. It is trite that sound and independent judgments require a strong legal profession to enable judges to uphold the Rule of Law in all its aspects. This was recognised right at the beginning. Almost immediately after the Supreme Court was set up in 1843, provision was made in 1845 as to who could act as a lawyer. As early as 1856 an Ordinance was enacted which provided for examination as to the fitness and "learning" of proposed candidates. A sound system of law cannot exist, let alone be sustained, unless there is a constant intake of well educated new lawyers who can join and sustain the legal professions and ultimately the ranks of the judiciary. The foundation provided by appropriate legal education leads to competent, vibrant and well-orientated legal professions. Now, as much as ever, legal education in Hong Kong is of particular importance. It was not until 1969 that a law school was founded in Hong Kong. Until then, admission to the legal professions in Hong Kong was dependent on overseas, primarily United Kingdom, qualifications. The first Hong Kong law school was at the University of Hong Kong. Initially, the University provided a course leading to a law degree. By 1972 the Postgraduate Certificate in Laws (the "PCLL") course was established. Since then the City University of Hong Kong and the Chinese University of Hong Kong have established law schools and offer a range of courses including law degrees and the PCLL. Since 1972, when the PCLL course came into being, overseas qualifications have gradually ceased to be the main basis for admission to the Hong Kong legal profession. One feature of legal education leading to professional qualification in Hong Kong, sight of which should not be lost, is that it is undertaken by the universities. There are no proposals in this Report that would involve a change of the status quo in that respect. Any such proposal would have very wide ranging implications. At present the system of university tuition works well and is beneficial for the students and the professions alike. Nevertheless, oversight of legal education, specifically quality of tuition, is a matter of importance to the professions, to the public and to Hong Kong generally. It is unnecessary to recite the historical iii development of legal education from the days when the law and practice of it was to a large extent learnt at the feet of practising lawyers. In those days the ultimate control of entry into the professions was in the hands of the judiciary. The role of the judiciary in the control of entry to the legal professions is today more ceremonial, nevertheless remnants of the system of learning and the form of control remain and are enshrined in legislation. Some of those remnants are still relevant today and some are anachronistic. Pupillage of barristers is still a very important part of legal training. Likewise, the articled clerks of old are now the trainee solicitors of today. Greater professional expertise is now expected of pupils and trainee solicitors than was previously the case; nevertheless there is no satisfactory replacement for a period of observation and guidance supervised by a practising lawyer. Recommendations are made in the report as to improvements in relation to trainee contracts and pupillages. As is noted in the Report, the Advisory Committee on Legal Education was established in 1971 as an advisory body and a channel for communication between the professional bodies, the University and the Chief Justice. Following the recommendation in the Redmond Roper Report in 2001, the Standing Committee on Legal Education and Training ("SCLET") was established. Its statutory role is to keep under review, evaluate and assess the system and provision of legal education and training in Hong Kong in particular, the academic requirements and standards for admission to the PCLL programme and to monitor the provision of vocational training of prospective legal practitioners in Hong Kong by organisations other than the Law Society or the Hong Kong Bar Association and to make recommendations. The secretarial functions of SCLET have hitherto been undertaken by the Law Society. In the Draft Report published in October 2017 the recommendation was made that consideration should be given to establishing a separate Secretariat. Since then the Law Society has resigned its secretarial function. Arrangements have been made that the secretarial functions will be undertaken by the Department of Justice. Consideration may have to be given as to whether that arrangement should be permanent. The Report envisages that SCLET should have a more proactive role and that there should be permanent subcommittees responsible for making recommendations to the full Committee. The intent is that recommendations adopted by the full Committee of SCLET should be acted upon. When the legal professions were small by comparison with the numbers today it was, no doubt, appropriate for the Chief Justice to be given responsibility for oversight of various matters relating legal education. In so far as the Chief Justice took outside advice it was on an ah hoc basis. In today's environment it is necessary that the Chief Justice should be given as much assistance as possible. The practical effect of the recommendation in the Report will be that when exercising the control enshrined in the Legal Practitioners Ordinance, the Chief Justice should be able to act upon recommendations of SCLET. In reviewing the structure of legal education questions often arise as to whether there should be control of numbers. The process of imparting knowledge is not a process of number control. That said, naturally there will be limitations on the number of students that can be accommodated in any one course. In this respect the funds available may themselves create a control of numbers. Nevertheless, the nature of control in education is rightly one of quality not one of quantity. iv The Report considers in broad terms, the desirability of maintaining core legal subjects in the degree course. The Report also considers whether the subject based prescription should be replaced by an outcomes based prescription in respect of the degree courses but that is a matter which would need careful consideration with SCLET. Despite the real prospect of greater use of artificial intelligence in the practice of law, in the foreseeable future there will be no substitute for human legal knowledge. Nevertheless the syllabi should incorporate matters of emerging technology. One of the aspects of the requirement that those completing the vocational legal courses should be immediately ready for practice is that there is time pressure on the vocational course leading to a danger that the curriculum may be overcrowded. At the same time, pressures on the academic curriculum have also increased. There is no easy solution, but it is increasingly necessary that a new balance should be found between the academic and the practical courses. One of the recommendations is that the universities should keep relevant course contents under constant review with a view to avoiding duplication between the academic stage and the vocational stage. This is an aspect which would call for cooperation and consultation between the various universities. A specific recommendation in relation to degree subjects is the inclusion of legal ethics. The universities are encouraged to integrate ethics into aspects of their programmes. The Report highlights the methods of teaching that are increasingly being used overseas including problem based learning and simulated and transactional learning.