Policy Statement & Submission

Our ref : 52/WKC/024
4 September 2006


Mr Stuart Stoker
Secretary
Working Party on Solicitor's Rights of Audience
LG228 High Court Building
38 Queensway
Hong Kong


Dear Mr Stoker

Right of Audience of Solicitors in the Higher Court

1. I refer to the consultation paper issued by the Working Party on Solicitor's Rights of Audience and would like to offer the views of the Hong Kong General Chamber of Commerce as follows.

2. The issue of the right of audience of solicitors in the Higher Courts was addressed in Section 6 of the 1994 Report of the “Working Group on Legal Services” of the Hong Kong Coalition of Service Industries, the Chamber's services policy think-tank. The position of the Chamber, as reflected in the HKCSI Working Group Report, is still applicable today.

3. The HKCSI's 1994 Report was the result of six months' deliberation by the Working Group. The Bar Association, the Law Society and the Legal Department all had representatives on the Working Group as observers.

4. In summary, the Chamber/HKCSI's position is that we support the extension of right of audience of solicitors to the higher courts, provided that the solicitors in question have the specialist knowledge and have been adequately trained in advocacy skills.

5. The full text of Section 6 of the HKCSI Report is as follows:

l Solicitors currently have right of audience in all courts and tribunals except for proceedings in open court in the High Court and the Court of Appeal, and in some other miscellaneous cases. This is not a requirement by the professional bodies or by law, but rather a practice by the Judiciary whereby the judge decides who to hear.

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l The justification for the current practice is that cases in the Court of Appeal typically involve complex legal points and issues of specialists points of law, while trials in open court in the High Court require specialist skills in cross-examination and, being typically the climax of the trial process, is most difficult and stressful. The current practice is much more difficult to justify for miscellaneous cases of an anomalous nature.

l It would seem fair that given the same kind of legal training, solicitors should have the same right of audience in the higher courts. Against this, it can be said that it is unlikely for solicitors to acquire the same advocacy skills, as in practice they typically choose not to be heard even where they already have right of audience. Moreover, the Bar is the advocacy arm of the profession, and to have a lawyer to act as advocate without the requisite training would be detrimental to the client.

l From the client's point of view, it is difficult to understand why he should not have the right to choose a specialist solicitor to conduct the trial in complex and specialist cases of litigation, such as in tax and construction. Although it is not typical for a solicitor to have developed advocacy skills through solicitor practice, solicitors could and some do practice advocacy in the District Courts. Provided that a solicitor has the specialist knowledge and has been adequately trained in advocacy skills, there seems no convincing argument why he should not have right of audience in the higher courts, and why the client cannot choose from between the solicitor and a barrister for the same task if they both have been equally trained.

6. I hope you will find the above views useful.

Yours sincerely





Dr W K Chan
Senior Director
Business Policy