Hong Kong law change gives gov't lawyers easier route to senior counsel status

Hong Kong lawmakers have passed a bill that will allow solicitors for the Department of Justice to be appointed as senior counsel (SC) without first serving as barristers, a move which follows attacks on the Bar Association by pro-Beijing forces.

Under the Legal Practitioners (Amendment) Bill 2021, government solicitors will be eligible to “take silk” or become an SC under requirements mandated by the current Legal Practitioners Ordinance, without first becoming a barrister.

The bill passed in about one hour and 12 minutes at the legislature after its second and third reading on Wednesday. The Hong Kong Bar Association has criticised the change as a threat to legal independence.

Former colonial ruler Britain, from which the city inherited its legal system, gives senior barristers the title of Queen’s Counsel, or QC, which was amended in Hong Kong to Senior Counsel after the 1997 handover.

Secretary for Justice Teresa Cheng told lawmakers the bill would remove an “unnecessary ceremonial threshold” so that government lawyers could gain a title they deserve. “All legal officers with commendable performance as advocates will be given an equal chance to be considered for appointment as senior counsel,” she said.

Under the changes, department lawyers wanting to become a SC will need a minimum of ten years’ experience in advocacy work, identical to the current prerequisite. But they will no longer be required to first become a barrister, with three months of pupillage in the private sector. Their senior counsel title will be revoked once they leave public office.

The bill applies only to department lawyers.

barrister hong kong high court lawyers — Photo: HK DOJ.

Cheng rejected suggestions that the government had proposed the bill as a perk in order to retain its staff, although she said in June that the proposal was triggered by the appointment of Deputy Director of Public Prosecutions Vinci Lam as senior counsel.

Lam — who had qualified as a solicitor — was made senior counsel in May, one year after taking time off from her government post to complete her pupillage as a barrister. She was known to have pursued tough sentences against defendants in protest-related cases.

‘Overwhelming opposition’

The Hong Kong Bar Association has come under fire from Beijing itself and from the pro-establishment camp for comments seen as “political,” with the government urged to revoke its power to license barristers to practise. Its current chair Paul Harris was accused by Beijing’s officials in Hong Kong of “supporting those who violated the law” in April after he criticised the sentencing of veteran democrats over two unauthorised assemblies.

Chief Executive Carrie Lam had said the government would intervene if necessary.

“The Hong Kong Bar Association has become Hong Kong’s street rat and its failure in Hong Kong is certain,” the People’s Daily, newspaper of China’s Communist Party, said this month.

Pro-establishment lawmakers who now dominate the city’s legislature supported the amendment on Wednesday, although some argued that legal officers should be allowed to keep their senior counsel titles even after leaving public office.

But it has irked the city’s barristers. In July the Bar Association said there was “overwhelming opposition” from its membership to the proposal.

Paul Harris, chairman of the Hong Kong Bar Association, arrives at the West Kowloon Magistrates’ Court on July 8, 2021 to represent his clients in a national security hearing involving 47 democrats. File Photo: Kelly Ho/HKFP.

“In carrying out their governmental duties, the legal officers’ duty primarily is to the superior hierarchy within the department. By way of contrast, a [senior counsel]’s duty is to both his client and the court, a duty that may, on occasions require him to decline to proceed with a prosecution or pursue a civil claim if, in his or professional judgement, it would be wrong to do so,” the Bar Association said in a statement at the time.

A spokesperson said this week its position had not changed. Hong Kong currently has 105 senior counsel.

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