The University of Hong Kong

Department of Law

Academic Year of 2019-2020

Examiner’s Report

[This report will be posted onto intranet immediately after the release of exam results]

Course code: LLAW1008 Course title: The Legal System of the Hong Kong SAR
Report prepared by: Dr. Eric C. Ip Ms. Karen Kong Date: 29 Jan 2020

The format of the examination is as follows: a twenty-four-hour, open-book, online take-

home examination (100% of the final grade) consisting of three questions, of which
candidates must answer two. There were mark penalties for late submissions and breaches
of the maximum word limit. A total of 247 candidates sat for the examination. Most
candidates attempted Questions One and Three. The examiners are overall very pleased
with the performance of the candidates. Almost 95% of all candidates who did not opt for
a pass/fail grade achieved at least a B- grade. Roughly 65% of the same candidates
achieved grade B+ or above. Remarkably, nearly 30% of the entire cohort managed to
attain an A- grade or above.

Question One

How far, and in what ways, are the rules of statutory interpretation currently used
by the courts of the Hong Kong Special Administrative Region essential for the rule
of law, as understood in the common law tradition, to endure?

1. Candidates should accurately point out that the rules of statutory interpretation
currently used by the courts of the Hong Kong SAR are contained in the purposive
approach of statutory interpretation, which emphasises on the purpose and context of
the statutory provision to be interpreted as expressed in its text/language:

 One authoritative summary of the purposive approach by the Court of Final

Appeal can be found in HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568,
574-575. Other clarifications by the Court include HKSAR v Fugro
Geotechnical Services Ltd (2014) 17 HKCFAR 755, 765-766.

 Relatedly, s.19 of the Interpretation and General Clauses Ordinance (Cap.1)

(IGCO) provides that “An Ordinance shall be deemed to be remedial and shall
receive such fair, large and liberal construction and interpretation as will best
ensure the attainment of the object of the Ordinance according to its true intent,
meaning and spirit”.

 In HKSAR v Chui Shu Shing (2017) 20 HKCFAR 333, 349, the Court (French
NPJ) stated: “The long-established approach to statutory construction in Hong
Kong involves an integrated consideration of text, context and purpose. That
integrated exercise requires a consideration of the ordinary meaning of the
words of the provision to be construed”.

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 Candidates should mention that Hong Kong’s courts have adopted a number of
rebuttable presumptions expressing deep-rooted common law values that are to
guide the process of determining statutory purpose and hence legislative intent. This
means that courts will construe purpose and intent consistently with these
presumptions absent clear reasons to the contrary. Relevant examples including
those mentioned by candidates:

 The principle of legality: A v Commissioner of Independent Commission

Against Corruption (2012) 15 HKCFAR 362.

 The presumption of consistency with international obligations: Hung Chan Wa

v HKSAR [2005] 5 HKLRD 291.

 The presumption against retroactivity: Yew Bon Tew v Kenderaan Bas Mara
[1983] 1 AC 553.

2. Candidates should mention at least one version of the rule of law espoused by
authoritative interpreters of the common law tradition as covered by this course.
Relevant examples of versions including those mentioned by candidates:

Dicey’s rule of law

 “In England no man can be made to suffer punishment or to pay damages for
any conduct not definitely forbidden by law”.

 “[E]very man’s legal rights or liabilities are almost invariably determined by

the ordinary Courts of the realm”.

 “[E]ach man’s individual rights are far less the result of our constitution than
the basis on which that constitution is founded”.

Lord Bingham’s rule of law:

 The law must be accessible and so far as possible intelligible, clear and
predictable.

 Questions of legal right and liability should ordinarily be resolved by the

application of the law and not the exercise of discretion.

 The laws of the land should apply equally to all, save to the extent that
objective differences justify differentiation.

 The law must afford adequate protection of fundamental human rights.

 Means must be provided for resolving, without prohibitive cost or inordinate

delay, bona fide civil disputes which the parties themselves are unable to
resolve.

 Ministers and public officers at all levels must exercise the powers conferred
on them reasonably, in good faith, for the purpose for which the powers were
conferred and without exceeding the limits of such powers.

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  Adjudicative procedures provided by the state should be fair.

 The rule of law requires compliance by the state with its obligations under
the international law that governs the conduct of nations, whether deriving
from treaty or international custom and State practice.

Former Chief Justice Andrew Li’s rule of law:

 “First, under the rule of law, everyone, both those who govern and those who
are governed, is subject to the same laws”.

 “Secondly, disputes between citizens and disputes between citizen and

government are resolved fairly and impartially by an independent Judiciary”.

 “Thirdly, the rule of law involves the effective protection of human rights”.

Chief Justice Geoffrey Ma’s rule of law:

 “[T]he rule of law comprises two connected premises: first, the existence of
laws that respect the dignity and rights (whether personal, proprietary or
what are known as human rights and freedoms) of the individual; and
secondly, the existence of an independent judiciary to enforce these rights
and liberties”.

Lord Neuberger’s rule of law:

 “First, it involves a society which is subject to rules which are accessible,

clear and proportionate, which recognise contemporarily accepted
fundamental rights, and which apply equally to all”.

 “Secondly, it requires all members of society to have access to independent

and effective courts so that they can enforce their rights and protect
themselves”.

Crucially, candidates should discuss the extent, and in what multi-faceted ways, are
the rules of purposive statutory interpretation essential for the rule of law, in the light
of the version(s) that they have discussed, to endure. Candidates should ideally
discuss arguments for and counterarguments against their own positions. Relevant
examples including those mentioned by candidates:

 The purposive approach’s objective emphasis on the text and (objective)

purpose and context of the provision, as opposed to the subjective intentions
of officials and legislators, promotes legal certainty/predictability. The text is
accessible to the public. The subjective intentions of officials and legislators
often are not. The principle of legality also promotes legal
certainty/predictability, as the courts are required not to permit ambiguous
words to undermine human rights.

 The purposive approach requires judges to take into account the requirements
of rights protection and the rule of law in interpreting statutes. The interpretive
presumptions of the purposive approach, eg the principle of legality,

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 presumption of consistency with the Basic Law and international obligations,
etc. help to promote or maintain human rights.

 Purposive statutory interpretations by the superior courts enjoy the status of

binding precedent under stare decisis. This promotes legal equality through
upholding the principle of “like cases to be treated alike”, and also promotes
legal certainty, as future courts are bound to interpret the same statutory
provision according to binding precedent.

 The purposive approach reinforces the independence of the judiciary in

interpreting the law objectively and independently from the interference of
political authorities: judges interpret provisions autonomously and decide the
weight they give to extrinsic materials on a case-by-case basis.

 The purposive approach may be essential/necessary but insufficient for the rule
of law to endure in Hong Kong, as the courts alone cannot maintain the rule of
law without cooperation from the political authorities and support from the
community-at-large. The purposive approach alone is unlikely to address all
threats against the rule of law posed by draconian legislation, for example.

 Under the purposive approach, which affords considerable flexibility, courts

may sometimes be tempted to give the language of a statutory provision a
meaning that it cannot bear, thus engendering legal uncertainty, see China
Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342, 358,
Lord Millett NPJ (“There can be no quarrel with the principle that statutory
provisions should be given a purposive interpretation, but there has been a
distressing development by the courts which allows them to distort or even
ignore the plain meaning of the text and construe the statute in whatever
manner achieves a result which they consider desirable. It cannot be said too
often that this is not permissible”.)

 Similarly, purposive approach does not always promote legal

certainty/predictability as judges might sometimes disagree with each other on
what it requires, though this is something that is not completely avoidable in
any legal system. For example, In T v Commissioner of Police (2014) 17
HKCFAR 593, the Court of Final Appeal was divided over whether organisers
of a dance performed on a temporary stage set up in a public pedestrian
precinct had to obtain a licence pursuant to s.4 of the Places of Public
Entertainment Ordinance (Cap.172), which provides for a licensing regime for
any person who keeps or uses “any place of public entertainment” to organise
an entertainment “to which the general public is admitted with or without
payment”.

3. Some candidates rightly observed that statutes cannot function without interpretation,
and purposive statutory interpretation by the common law courts enable statutes to
function with due regard to constitutional principles and human rights, so that the
rule of law can be maintained as far as possible in relation to the implementation of
statutes.

4. Common mistakes: It is a serious omission not to substantially elaborate on the

concept of the rule of law in the common law tradition. It is a serious error for a
candidate to treat the ancient literal, golden, and mischief rules of statutory
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 interpretation exclusively as the rules of statutory interpretation currently used by the
Hong Kong courts. It is true that the purposive approach contains elements from each
of these ancient rules, but these have been described by the Court of Final Appeal as
“old” and “historical” in Medical Council of Hong Kong v Chow Siu Shek (2000) 3
HKCFAR 144, 152-154. Weaker answers failed to explain the ways through which
purposive statutory interpretation contribute (or not contribute) to the rule of law.

Question Two (50 marks)

Critically evaluate, using relevant examples and with reference to the principle of
checks and balances, the relative importance of the Chief Executive in Council and
the Legislative Council in the processes by which primary and subsidiary legislation
is made in the Hong Kong Special Administrative Region.

1. The “Chief Executive in Council” refers to “the Chief Executive acting after
consultation with the Executive Council” (s.3, Interpretation and General Clauses
Ordinance).

2. According to the Basic Law:

 The Executive Council is “an organ for assisting the Chief Executive in policy-
making” (art.54).

 Members of the Executive Council are appointed by the Chief Executive from
principal officials, Members of the Legislative Council and public figures
(art.55).

 The Chief Executive is required to consult the Executive Council before (1)
making important policy decisions, (2) introducing bills to the Legislative
Council, (3) making subordinate legislation, and (4) dissolving the Legislative
Council; she is not required to do so in relation to "the appointment, removal
and disciplining of officials and the adoption of measures in emergencies"
(art.56).

 The Chief Executive is not bound by the advice of the Executive Council; in
other words, she can act as the “Chief Executive in Council” as long as she has
consulted the Executive Council which might have disagreed with her (art.56).

3. The Legislative Council is “the legislature of the Region” (art.66). However, a bill
passed by the Legislative Council becomes law only when it is signed by the Chief
Executive (note: NOT the Chief Executive in Council) (art.76).

4. Primary legislation in Hong Kong refers to Ordinances - failure to recognise this

correctly should be considered to be a serious omission. Subsidiary legislation refers
to “any proclamation, rule, regulation, order, resolution, notice, rule of court, bylaw
or other instrument made under or by virtue of any Ordinance and having legislative
effect” (s.3, IGCO).

5. Discuss the relative importance of the Chief Executive in Council and the Legislative
Council in relation to the making of primary legislation. Relevant examples including
those mentioned by candidates:

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  The Chief Executive in Council is responsible for introducing Government bills
into the Legislative Council.

 The Chief Executive in Council has exclusive power to introduce bills relating
to public expenditures; governmental operations; and political structures; no
Member of Legislative Council may introduce bills on these areas (art.74). This
gives the Chief Executive in Council a significant advantage over against the
Legislative Council in originating the most important bills in Hong Kong.

 When it comes to private members” bills concerning “government policies”,

however, it is the written consent of the Chief Executive (note: NOT the Chief
Executive in Council) that is required.

 There is a split voting procedure under Annex II of the Basic Law: simple
majority for Government bills, and simple majority in each of the geographical
constituencies and functional constituencies for private members” bills. This
procedure makes it much more difficult for individual legislators to introduce
proposed bills or amendments, and consequently, gives the Chief Executive in
Council a significant advantage over against the Legislative Council.

 Relatively speaking, the Chief Executive in Council appears to play a much

more active role than the Legislative Council in the process of originating
primary legislation, especially important ones; the latter’s role seems to be
confined to resistance through scrutiny and voting.

 Nonetheless, without the Legislative Council’s voting, it is impossible for a

Government bill to be enacted. There have been examples in which a bill
introduced by the Chief Executive in Council did not ultimately become an
Ordinance.

 In relation to private members’ bills that do not concern (1) public expenditures,
(2) government operations, (3) political structures, (4) government policies, the
Legislative Council does play a more important role than the Chief Executive
in Council (the Executive Council arguably has no role to play in the enactment
of such bills).

6. Discuss the relative importance of the Chief Executive in Council and the Legislative
Council in relation to the making of subsidiary legislation. Relevant examples
including those mentioned by candidates:

 The Chief Executive (art.56, Basic Law) and the Government (art.62(5)) have
powers to make subsidiary legislation; when the Chief Executive introduces
subsidiary legislation, she has to consult the Executive Council (art.56, Basic
Law).

 Section 34 of the IGCO provides that generally speaking the Legislative Council
has negative vetting powers over subsidiary legislation.

 Section 35 of the IGCO provides that Ordinances may or may not vest positive
vetting powers over subsidiary legislation in the Legislative Council.

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  Not every piece of subsidiary legislation is introduced by the Chief Executive
in Council and/or vetted by the Legislative Council. Failure to mention this is a
serious omission. In discussing this point, candidates should mention at least
one of the following three types of examples (the exact legislation used as an
example may differ from candidate to candidate).

 Eg, it is the Chief Justice who was designated by the Legal Practitioners
Ordinance (Cap.159), s.72AA to approve the Barristers (Qualification for
Admission and Pupillage) Rules (Cap.159AC, Sub.Leg.), subsidiary
legislation made by the Bar Council. In such a case, neither the Chief
Executive in Council nor the Legislative Council is important.

 Eg, subsidiary legislation made under s.3 of the United Nations Sanctions
Ordinance (Cap.537) does not require positive or negative vetting by the
Legislative Council. In such a case, the Chief Executive in Council would
be vastly more powerful than the Legislative Council, which becomes
irrelevant.

 Eg, the Peak Tramway By-laws (Cap.265B) was made by the Peak
Tramway Company with positive vetting from the Legislative Council, per
Peak Tramway Ordinance (Cap.265). In this case, the Chief Executive in
Council becomes irrelevant.

 Overall, the Chief Executive in Council can introduce, and the Legislative
Council enact, a Government bill (with the signature of the Chief Executive)
that overturns or repeals a piece of subsidiary legislation (s.28(1)(b), IGCO: “no
subsidiary legislation shall be inconsistent with the provisions of any
Ordinance”.)

7. Candidates should make substantial reference to checks and balances throughout

their discussions. There is no official legal definition of checks and balances;
candidates were allowed to develop their own understandings of this concept, as long
as they are coherent and reasonable. Relevant examples including those mentioned
by candidates:

 Checks and balances ensure that (1) neither the executive nor the legislature
wields a singular absolute power over law-making, and that (2) one’s arbitrary
behaviours can be corrected by the other, so that (3) the Basic Law can be upheld,
the rule of law can be preserved, and the infringement of constitutional rights
can be kept at a minimum.

 Checks and balances in the Hong Kong legislative process are tilted in favour
of the Chief Executive and the Chief Executive in Council. Given the presence
of functional constituencies, and split voting, the effectiveness of a vote in the
Legislative Council for Government bills, and for negative vetting of subsidiary
legislation is unlikely to be very consequential or important. This may be related
to the need to ensure a Chief Executive-led government on the part of the Basic
Law’s drafters.

 Candidates may comment on the consequences of weak (or strong, if it was so

argued) checks and balances on the overall performance and desirableness of
the process of enacting primary and subsidiary legislation.
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8. Common mistakes: To treat the “Chief Executive in Council” as “Chief Executive in
Legislative Council” or as exactly the same as the “Chief Executive” (not acting after
consulting the Executive Council), is to commit a serious error. To fail to draw
relevant examples drawn from the Hong Kong SAR is to commit a serious omission.
To define “checks and balances” exclusively as the relationship between entities
inside the British political system/English legal system is to commit a serious
conceptual error and to raise an irrelevant example. To discuss the powers of the
Chief Executive in Council and the Legislative Council in general without focusing
on the processes by which primary and subsidiary legislation is made is to commit a
serious error.

Question Three (50 marks)

To what extent do the legal profession and the Department of Justice uphold equality
before the law and the right to a fair trial in the criminal justice system of the Hong
Kong Special Administrative Region? Discuss with reference to relevant examples
(40 marks). What reforms would you suggest to improve access to justice for the
accused? (10 marks)

Part One (40%)

1. This question is divided into two parts. Part One (40 marks) requires candidates to
critically analyse the features, work and governing rules of the legal profession and
the Department of Justice (DOJ) using the principles of “equality before the law” and
“the right to a fair trial”.

2. Candidates should be able to explain the meaning of “equality before the law” and
“the right to a fair trial”, and ideally citing or describing their key elements in the
relevant Basic Law or Bill of Rights provisions:

Equality before the law

 Art 25 BL: “All Hong Kong residents shall be equal before the law.”

 Art 22 BOR: “All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status.”

Right to a fair trial

 Art 35 BL: “Hong Kong residents shall have the right to confidential legal advice,
access to the courts, choice of lawyers for timely protection of their lawful rights
and interests or for representation in the courts, and to judicial remedies.”

 Art 87(2) BL: “Anyone who is lawfully arrested shall have the right to a fair trial
by the judicial organs without delay and shall be presumed innocent until
convicted by the judicial organs.”

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  Art 10 BOR: “All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and obligations
in a suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law…. any judgment
rendered in a criminal case or in a suit at law shall be made public except where
the interest of juvenile persons otherwise requires or the proceedings concern
matrimonial disputes or the guardianship of children.”

 Art 11(2) BOR: “In the determination of any criminal charge against him,
everyone shall be entitled to the following minimum guarantees, in full equality-

(a) to be informed promptly and in detail in a language which he understands of

the nature and cause of the charge against him;

(b) to have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing;

(c) to be tried without undue delay;

(d) to be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal
assistance, of this right; and to have legal assistance assigned to him, in any case
where the interests of justice so require, and without payment by him in any
such case if he does not have sufficient means to pay for it;

(e) to examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;

(f) to have the free assistance of an interpreter if he cannot understand or speak

the language used in court;

(g) not to be compelled to testify against himself or to confess guilt.

3. Candidates should clearly state the extent to which they believe that the legal
profession and the DOJ respectively uphold equality before the law and the right to a
fair trial in the criminal justice system of Hong Kong. The following are some points
that can be discussed. They are non-exhaustive, and it is not necessary to mention all
the points to earn high marks. An excellent paper is one with a proper balance between
the quantity and quality of the points raised analysed, with relevant examples cited.

4. Answers with material errors of key facts and concepts should be marked down. Note
that some points are relevant to the civil justice system but NOT the criminal justice
system, e.g. alternative dispute resolution.

5. Legal Profession

Relevant examples of aspects which uphold equality and the right to fair trial including
those mentioned by candidates:

 Independence of the legal profession: the legal profession in Hong Kong is

independent from the Government of the Hong Kong SAR. Solicitors and
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 barristers are self-regulated by the Law Society and Bar Association respectively,
and have their own rules of professional conduct. This ensures that the public can
obtain objective legal advice and legal representation free from political influence.
Independence protects lawyers from pressure of self-censorship, thus promoting
equality before the law and the right to a fair trial.

 Cab-rank rule: barristers cannot pick and choose their clients (Bar Code 6.01). This
ensures that that clients who are “unpleasant, unreasonable, disreputable, and have
an apparently hopeless case” can still have legal representation (Rondel v Worsley
[1967]1 QB 443). Even defendants accused of the most serious crimes such as
murder or child abuse would still be represented by barristers. This can uphold
equal rights of legal representation.

 Legal professional privilege (LPP): clients enjoy LPP, also called the right to
confidential legal advice (Art 35 Basic Law). Both barristers and solicitors are
under legal and professional duties to “hold in strict confidence all information
concerning the business and affairs of their client acquired in the course of the
professional relationship”; such duties continue indefinitely into the future. This
ensures that the accused can be protected from the disclosure of confidential
information against him, thus ensuring the right to fair trial.

 Legal Aid, Pro Bono, Duty Lawyer Service: Lawyers can opt to be on the Legal
Aid panel of lawyers, provide pro bono legal service and help in the duty lawyer
scheme for those who cannot afford legal representation, thus helping to uphold
equality before the law.

 Professional ethics and discipline: Solicitors and barristers have to act competently,
in the best interest of their clients, but have an overriding duty to the court (Bar
Code para 10.5, 10.29, Solicitors” Guide to Professional Conduct Principle 1.01).
This ensures that a fair trial is conducted by lawyers with competence and
diligence, without deception of the court.

Relevant examples of aspects which may undermine equality and right to fair trial
including those mentioned by candidates:

 High legal costs: This affects equality before the law, as the poor may be deprived
of their equal right to legal presentation because of inability to hire a lawyer, or
lawyer of good quality and seniority.

 Delay: if barristers play tactics and prolong the litigation process, justice delayed
is justice denied.

6. Department of Justice

Relevant examples of aspects which uphold equality before the law and right to fair trial
including those mentioned by candidates:

 Art 63 Basic Law: “The Department of Justice of the Hong Kong Special
Administrative Region shall control criminal prosecutions, free from any
interference.”

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  The Public Prosecutor has no client but the community at large. He knows neither
victory nor defeat. His duty, above all, is to act impartially in pursuit of the public
interest, to ensure equality and justice is done.

 Prosecution Code 2013: Prosecutors should “comply with and promote the rule of
law” and “fairly and objectively assist the court to arrive at the truth and to do
justice between the community and the accused according to law” (3.3). Any
decision to prosecute must satisfy two mandatory conditions: it must be: 1)
supported by sufficient admissible evidence, and 2) consistent with general public
interest (5.3).

 Prosecutorial independence is critical to preventing the Prosecutions Division to

descend into a tool of the powerful for persecuting residents arbitrarily.

 Impartial prosecution, e.g. prosecution of former Chief Executive Donald Tsang

on charges of bribery and misconduct in public office, despite his high political
ranking.

Relevant examples of aspects which may undermine equality before the law and right to
fair trial including those mentioned by candidates:

 E.g. Lack of complete independence between DOJ and the rest of the executive
government: The Secretary for Justice is a politician, and this has aroused some
concerns over whether the Prosecution Division’s decision-making processes are
truly independent of political forces. The Secretary carries the title of Official
Executive Councillor, sits in the Chief Secretary’s Policy Committee, and holds
office at the pleasure of the Chief Executive and the State Council of the PRC. One
former Director of Public Prosecutions has thus advocated for the creation of an
independent Director of Public Prosecutions.

Relevant examples of aspects which may cast doubt on the independence of the
prosecutorial decisions and compliance with equality before the law including those
mentioned by candidates:

 E.g. In 1998, the Secretary for Justice decided not to prosecute a newspaper tycoon,
perceived by not a few of the members of the public to be a friend of the Chief
Executive, after she was named co-conspirator with the three executives of her
newspapers who had been charged with conspiracy to defraud. The decision was on
the basis that evidence against the tycoon was insufficient and that if she had been
charged, her company would have collapsed, leading to serious loss of employment
and sending a bearish message to the international business community.

 E.g. In relation to the recent anti-extradition bill movement, there have been speedy
prosecutions of large numbers of protestors arrested during public assemblies for
serious criminal charges including riot; by contrast, the investigation and prosecution
of suspected assailants involved in the 7.21 Yuen Long civilian attacks have been
considerably slower and smaller in scale. Such sharp contrast has given rise to
widespread accusations of bias and unequal treatment on the part of DOJ from many
quarters of the community.

 E.g. Contrary to earlier practice, the Secretary for Justice did not seek independent
counsel prior to deciding against prosecuting a former Chief Executive in relation to
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 a controversy involving the declaration of interests and possible conflicts of interest.
This has caused a former Director of Public Prosecutions to publicly criticise the
Secretary for Justice.

 It is very difficult to challenge decisions of non-prosecution by DOJ: judicial review

is available only in exceptional circumstances (e.g. dishonesty, bad faith) or when
the decision has exceeded constitutional limits imposed. Legislative oversight is a
limited means of holding the Department of Justice to account, as the Attorneys-
General and Secretaries for Justices are to be held accountable to the public through
Legislative Council questioning sessions.

Part Two (10%)

7. Reform

In Part Two of this question (10 marks), candidates are required to make suggestions on
the reform to improve access to justice for the accused in the criminal justice system. The
following are some suggested reform proposals. They are non-exhaustive. An excellent
answer should have a proper balance between the quality and quantity of the points
discussed. Some answers rightly made reference to the feasibility and challenges in
implementing the proposals.

 Establishment of an independent legal aid authority / independent Director of

Public Prosecution

 Increase the financial eligibility limit for Criminal Legal Aid

 Promote pro bono culture in the legal profession

 Compulsory pro bono service requirement for lawyers

 Extend professional indemnity insurance to registered NGOs

 Conditional fee arrangement; abolish the offences of maintenance and champerty

 Use of technology to improve access to justice, e.g. the development of apps

 Increase public funding for the Legal Aid Department

 Community legal advice centres

 Public legal education

Common mistakes include: The failure to connect features of the legal profession and the
DOJ to discussion of the principles of equality before the law and the right to fair trial is
a serious omission. To discuss only the legal profession and the DOJ generally without
addressing the question directly is to commit a serious omission as well. To mistake the
judiciary or the jury as the legal profession is to commit a serious error. To fail to draw
relevant examples drawn from the Hong Kong SAR is to commit a serious omission.

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