7 September 1996
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To someone accustomed to working in the English Bar, the first impression of the Bar of Hong Kong is akin to gazing into a mirror and seeing the reflection of a stranger wearing one of your own suits staring back. The clothes fit, but the wearer is, undeniably, not you.
As in England, the Hong Kong Bar is based on the chambers system. But the cramped facilities at home - shared rooms in and around the Victorian centres of provincial cities - are replaced by spacious and glittering office towers, equipped with the dernier cri of communication technology.
And it is not only the working environment which rings the changes. Clerks and practice managers, for example, carry far less influence than in England. A Hong Kong barrister will almost inevitably negotiate his fees directly with his instructing solicitor. He is likely to pay more heed to the advice of his fung shui man on whether the position of his desk compliments the aura of earth and fire which he radiates, than to his clerk's complaints that he is behind with his paperwork. And while some of the chambers are much like their middle-sized English counterparts, with between 20 and 30 tenants, the sole practitioner and the two or three-man set is a common feature.
However, 150 years of British influence and the influx of barristers from the English Bar have left their mark. The legal system is deeply rooted in the common law and its first language is English, the Ordinances (the local statutes) are often derived from UK legislation and the local law reports (HKLR and HKCLR) are of a format which is instantly recognisable to the English practitioner.
The Bar also faces many familiar challenges - solicitors knocking on the High Court's door for rights of audience for instance. The trappings are also the same: wigs, gowns, wing collars, bands and "as your Lordship pleases" in court, while outside the familiar blue bags and red bags, and the awkward hand-shake gavotte, indicative of the first introduction to another Bar member, are occasionally in evidence.
But the local Bar is not just a sub-tropical version of the English Bar. It is a self-sufficient and independent institution, and many factors make it so.
The most obvious is that Hong Kong is a very different place from the UK. It is a thriving business-based society, which, in spite of a population of less than 6.5 million, is one of the world's major economies, with contracts and litigation to match. Hong Kong is the maritime hub of the Far East and is home to many sterling millionaires, some of whom have been defendants in spectacular fraud and corruption trials.
This vibrant business community provides an enormous spread of work for the Hong Kong Bar - occasionally augmented by UK silks, although decreasingly, since the local Bar regularly objects to these temporary admissions. By UK standards, this varied work is plentiful and very well-paid. For example, it is not unusual for a middle-ranking junior to earn per case the fees which a QC would expect to receive in England. Moreover, many members of the Hong Kong Bar are able to reduce the impact of 15 per cent income tax by setting up management companies for themselves, effectively cutting their tax bills to around 8 per cent. Consequently, the constant financial pressures on English barristers are not perceptible in Hong Kong.
But the oriental work ethic allows little time for sitting back and enjoying this additional wealth. Like all Hong Kong professions, the Bar is exceptionally hard-working. This is particularly the case for the Chinese members, who regularly keep hours which their English counterparts would consider unacceptable.
The size of the profession as a proportion of the population is similar to that in England and Wales. Its membership numbers approximately 570, about 45 of whom are QCs appointed by the Chief Justice (although there are some English silks who practise locally), with 70 per cent of the Bar made up of 'locals' - the politically correct term for ethnic Chinese.
Opportunities and abilities resemble those in the UK. There are the high flyers and the forensically challenged in all groups and most solicitors, both local and expatriate, do not instruct counsel on the basis of origin. Whether these proportions will remain unchanged is open to question.
In spite of claims to the contrary, there is no longer a rush to leave before 30 June 1997. Most of those who were planning to leave have departed, and the current attitude is one of 'wait and see'. But it is inevitable that recruitment to the Bar from the UK and the old Commonwealth will diminish, and this is in no small way because many of the Bar's members have come from the Attorney General's Chambers, which is now recruiting principally from locals.
The Attorney General's Chambers is an institution unlike anything in the UK, although it has an equivalent in Australia. It is a branch of the Hong Kong government and its function is clearer from its more familiar name, the Legal Department. It has divisions responsible for law drafting, legal advice to other government departments, civil litigation and, under the director of public prosecutions, a criminal division responsible for all prosecutions in the territory.
Staff of the Attorney General's Chambers are civil servants. Those of the rank of Crown Counsel and above have rights of audience in all courts. Although briefing the 'private' Bar does happen, the majority of prosecutions are conducted by the department's personnel, at all levels. It is the provenance of Crown Counsel which adds such a distinctive ingredient to the Hong Kong legal mix, because, as well as locally-qualified barristers and solicitors, the Attorney General's Chambers has traditionally drawn its resources from the UK, Ireland, Canada and, primarily, Australia and New Zealand. As a period in the Legal Department is often the prelude to joining the private Bar, the resounding accent in court is as likely to be antipodean as anything else.
The judiciary also has a varied lineage. Promotion through judicial ranks is usual, with many current holders of high office, including the Chief Justice, having begun their careers as magistrates before becoming district court judges - the approximate equivalent of circuit judges in England, but sitting without juries - then being appointed to the High Court.
The homogeneous accusations so often levelled at the Bench in England can scarcely be made in Hong Kong. For example, my introduction to the Court of Appeal in Hong Kong was before judges who had come from Ireland, New Zealand and Cyprus.
This amalgam of origins has been a factor in making the Hong Kong Bar more prepared to cast its net widely in its search for persuasive authority, as has the enactment of the Bill of Rights Ordinance, which has counterparts in the Canadian Charter and the US Constitution, but not in the UK. The trend is beginning to emerge in the English courts, but, for many years, the Bar in Hong Kong has looked to the judgments of appellate courts of other common law jurisdiction as well as to those of the UK and Hong Kong.
Other trails have also been blazed. For example, the present chair of the Bar, Gladys Li QC, is the second woman to hold the post and her recently-elected vice-chair is also a woman.
The Hong Kong Bar is clearly not just a shadow of the English Bar, or a vestigial remainder of a soon-relinquished colonial appendage modified only by local needs. It has its weaknesses, perhaps the most serious being the deterioration in the standard of spoken English among new entrants, but it is strong, ethical and unafraid of voicing candid opinions, which may turn out to be its most important quality in the years to come.
The future probably holds further moves. Hong Kong is a changing society and the Bar must reflect this constant motion. But, although the impending change of sovereignty adds uncertainty, the joint agreement between the UK and China and the Basic Law, which will be the constitution of the new Special Administrative Region of Hong Kong, promise 50 years of continuation of the legal system. Its distinct identity is its strength and, with goodwill on all sides, the Bar should continue to thrive.