The Department of Justice (DoJ) intends to amend the Legal Practitioners Ordinance to allow solicitors working in the DoJ to take a shortcut to become Senior Counsel (SC). The scent of pork barrel is so thick and strong but this government has long been in a state of transcendence, with no logic and no regard for image, let alone public opinion.

The legal profession in Hong Kong is broadly divided into barristers and solicitors. Qualified barristers can apply to become SC, and are appointed by the Chief Justice of the Court of Final Appeal. To become SC, a solicitor is required to complete one year of pupillage with a mentor to first be qualified to practise as a barrister, and is then generally eligible to apply for SC after practicing for 10 years or more.

In the past four years, the average turnover rate in the DoJ has been 5%, or about 60 lawyers per year, leaving only four SC in the DoJ, namely the Secretary of Justice (SJ) herself, Solicitor General Wesley Wong, and the two Deputy Directors of Public Prosecutions, William Tam and Vinci Lam. Cheng has proposed to create a quick path for DoJ colleagues to leap from solicitor to SC. There is reason to believe the purpose of this move is to retain talent and reduce turnover, plus, a few more SC on the Justice Department team will make things easier for the DoJ.

Rather than reflecting on the reasons why her subordinates quit, Teresa Cheng tried to be cunning and tricky, putting forward this proposal and adding trouble and confusion to the legal profession. The Bar Association issued a letter to its members on the 8th of this month, in which it quoted the SJ as saying that the above proposal would only apply to legal officers working in the DoJ and those working in other government departments would be excluded.

The self-serving, reckless idea that would give privilege to one over others drew immediate criticism. On the following day, Cheng met with reporters and argued with ambiguity that “the people who go to court are most likely officers of the DoJ, so this proposal is more closely related to the justice department’s officers.”

The whole thing does not make sense because legal officers working in various government departments, such as the Lands Department and the Intellectual Property Department, will also appear in court, so why are they not eligible to apply for SC like the DoJ officers? Moreover, not all legal officers working in the DoJ are required to go to court. Are the department’s law draftsmen also entitled to apply for promotion to SC? The lack of rules and objective standards behind Teresa Cheng’s approach is precisely what has made the DoJ and the entire SAR Government so abhorrent in recent years.

Three days later, the latest statement on the SJ’s blog is that the proposal would apply to “all legal officers serving in the government (DoJ and some other government departments).” What are the “other government departments” referred to by the SJ, and which departments are qualified and which are not? A proposal that is presented without careful consideration will only give rise to more and bigger confusing questions.

What is even more inconceivable is that Teresa Cheng explicitly stated that the title of SC would be revoked as soon as the DoJ member leaves the team if he or she was appointed as SC through that route.

Here’s the problem. Suppose a legal officer is appointed as SC through the shortcut provided by Cheng. Theoretically, this officer would meet the criteria set out in the Legal Practitioners Ordinance, that is, the Chief Justice endorses that the officer is of high calibre and reputation, has sufficient legal knowledge, has the necessary experience and is practicing as an advocate. How can it be that this person is relinquished of the above-mentioned conditions once he or she leaves the justice department? The shortcut of the accreditation is like a “temporary license” whereby even if one is competent as SC, one could be given less respect by one’s peers, including judges.

In fact, legal officers working in the government, whether they are solicitors, barristers or SC, have the right to appear in court at all levels and are not denied access to government litigation just because they lack barrister or SC qualifications. If Teresa Cheng wants to have a few more SC in the DoJ, or to try to retain talent or to strengthen the team, a simple way would be to allow associates to take a year and a half off to learn from their mentors about the practicalities of the bar, and to pursue promotion in the normal way, as they should. Why should the SJ waste time practicing laziness yet not being smart about it?

The dramatic downward developments in Hong Kong in recent years, coupled with the enactment of the National Security Law and the DoJ expediting political prosecutions, have made it increasingly difficult to convince the international community that our legal and judicial systems are adequate to protect the basic rights of people living or doing business in the city. The early resignation and non-renewal of the contracts of the two non-permanent judges of the Court of Final Appeal, James Spigelman and Brenda Marjorie Hale, respectively, are evidence of the depth of this concern. It is understandable that they have cast a vote of no confidence in the future of Hong Kong. The other non-permanent judge, Lord Sumption, has made it clear that he intends to seek reappointment, stating that there has never been democracy in Hong Kong, but the rule of law has existed and still exists.

Perhaps Lord Sumption is overly optimistic and at odds with the general public sentiment in Hong Kong, but it is true that there are many local and foreign judges who are doing their best to protect the reputation of Hong Kong’s rule of law at all levels of court. It is important that the SAR government, and the SJ in particular, take heed of what they say and do, and refrain from being overbearing, arrogant, and stupid, and do not add insult to injury to the precarious rule of law.

(Alan Leong, Chairperson of the Civic Party)

This article is translated from Chinese by Apple Daily.

Click here for Chinese version

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