Legal System Intensive Notes

7/25/2019 Legal System Intensive Notes

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Legal System

An overview of the Common Law System

Social functions of law:

1. Law prevents undesirable behavior and secures desirable behavior.

2. Law provides facilities for private arrangements between individuals.

3. Law provides services and redistributes goods.

4. Law settles disputes.

5. Law regulates its own creation and application.

6. Law communicates and reinforces social values.

a!or legal s"stems in the world:

- common law s"stem

- civil law s"stem

- socialist law s"stem

- religious law s"stem

#he common law s"stem

- S"stem of law originated from $ngland and %ales since 1&66 'law common

to the whole of $ngland and %ales ( abolishment of regional and local law)

- *ommon law is described as decisional law.

- *ommon law can have di+erent meanings when used in di+erent senses.

1. ,t ma" refer to law which is not local law.

2. ,t ma" refer to a legal s"stem in contrast to the codi-ed or other s"stems.

3. ,t ma" refer to case law.

4. ,t ma" refer to one particular t"pe of decisional law to distinguish it from

another t"pe called e/uit".

-*ommon law and e/uit" are two separate s"stems of case0law. #he" aredistinguished not onl" b" origin but also b" their nature.

- rigin:

*ommon law:

#he law as administered b" the ings courts became the common

law of $ngland and %ales.

3 principle courts administered !ustice independentl" from but in

the name of the ing: the *ourt of ings ench the *ourt of

$che/uer and the *ourt of *ommon leas.

$/uit":


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etitions to the ing to eercise his prerogative in case of in!ustice

-rst dealt with b" the ing in *ouncil then b" the ings chief

minister the *hancellor later became formali7ed and dealt with in

the courts of e/uit" leading to the formal development of the*ourt of *hancer" which was the principle forum for the

administration of the principles of e/uit" until its abolition in 1895.

- ature:

*ommon law:

;ppl" in


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controlled b" local populace

- Budicial institution ( consists of courts and tribunals

- $ecutive institution ( $ecutive *ouncil 'formulates polic" for translation

into ordinances b" legislation) the civil service the police the ,*;*

asic values underl"ing the common law s"stem:

- Desidual rinciple: $ver"thing that is not forbidden is lawful

- ;bsence of arbitrar" power: governments power has to be derived from law

- Despect for individual rights and propert" rights: ;ll suspects are presumed

to be innocent before proving guilt"

- =ue process: @ow to reach the resultE 'procedures ensure fairness)F

Goluntar" confession statementF revent torturing to confession

- $/ualit" before law

- Aair and impartial administration of !ustice: *riminal and civil !ustice s"stemF

disciplinar" proceedings

- ,ndependence of Budiciar"

*haracteristics of *ommon Law:

- *ase law approach

Defer to the reasoning of the !udge for his !udgment

$ver" single !udgment and ever" single case is the source of law

*ase law applied all over the world

$ver0growing

- Hualit" of !udgment as an ob!ective measure of !udicial /ualit"

- =octrine of precedent

n the basis of the reasoning of the !udge

- @ierarch" of court

*A; as the highest in @

-Law reporting s"stem Ainding precedents

,nvolving legal decision

oth oIcial and unoIcial

- ;dversarial s"stem 'dominated b" law"ers) v ,n/uisitorial s"stem

'dominated b" !udges)

;dversarial s"stem

Budge cannot ta?e part in debate

,n balance between two parties

rocedural fairness


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,n/uisitorial s"stem

Budges ta?e an active rolecarr" out investigation

*ivil law s"stem

ractice in @s Labour #ribunal and Small *laims #ribunal

- *rucial Dole of law"ers

*arr" out investigation

$amination of witnesses in court 'whereas in civil law eamination is

carried out b" !udges)

resentation preparation

- ,mportance of procedural law and law of evidence

Budge ensures the procedure and the evidence as a referee to ensure a

fair pla"

Budge observes the evidence and ma?es decisions

- rinciple of oralit" and burden of proof

*ross eamination

bserved b" the !udge

*ourt s"stem

- *ourt of Ainal ;ppeal

$ercised b" 5 !udges ( a *hief !ustice 3 permanent !udges one !udge

drawn from one or two panels

,t ma" invites !udges from other common law !urisdictions to sit

Leave to appeal is re/uired and shall not be granted unless


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- =istrict *ourt

Stands between magistraciesC certain tribunals and the *ourt of Airst

,nstance

*ivil !urisdictions: tort and contract

=ebt demand damage claimed not more than K12&&&&

Decover" of land: not more than K1&&&&&

$/uitable !urisdiction: not more than K12&&&&

; district !udge sits alone: no !ur"

*annot impose a term of imprisonment more than 9 "ears

- Degional court 'Small *laims #ribunal)

- agistrates court

=ealt with minor crime

a?e orders for the pa"ment of civil debts awards compensation not

eceeding K5&&& and grant bail

aimum sentence impose is two "ears in prison and a -ne K1&&&&

*onstitutes !uvenile courts

- *oroners *ourt

Desolves doubts about deaths is oIcial custod" or suspicious

circumstances

Decommends how accidents can be avoided

3 coroners ma?e up a *oroners *ourt

- Lands #ribunal

;ppeals go to *; but not *A,

=isputes between landlords and tenants private lands

AormalF barristers usuall" act on behalf on claimants

- Labour #ribunal

labour disputes: contracts of emplo"ments rights of emplo"ees

Huic? informal and uncomplicated

,n the presence of law"ers- Small *laims #ribunal

Small claims

*ontract or tort: claimed not more than K15&&&

o barristers and solicitors allowed

;ppointment and Demoval of Budges:

- Huali-cation

- Budicial Icers Decommendation *ommission


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- Budges independent of the $ecutive and of other members of the Budiciar"

- ublic hearing

- Budgments and reasons for decisions

-

Demoval ( misconductF reaching the retirement ageStatues

- Legislative process '1st 2ndand 3rdreading and approval b" the *$)

- ublication of bills in a7etteF law can onl" come into e+ect after publication

- =etailed draftingF less polic" statements

- ilingual Law ,nformation S"stem 'L,S) and @ong ong Legal ,nformation

,nstitute '@L,,)

- o temporar" legislationF internal circular or guidance has no legal e+ect

rocedural Bustice: Dule of natural !ustice

- the rule against bias MN ever"one has a right to ?now the charge and

evidence brought against heCshe

- the right to be heard

- a dut" to act fairl"

- !udicial review

The Rule of Law

;0 =ice"s view on the rule of law

1. ecludes the eistence of arbitrariness of prerogative or even of wide

discretionar" authorit" thus none can be made to su+er penalties

ecept for a distinct breach of law established before the ordinar" courts

eg. detention without trial

2. e/ualit" before the law: that no one was above the law that no one was

above the law that oIcials li?e private citi7ens were under a dut" to

obe" the same law

3. the law of constitution are not the source but the conse/uence of the

rights of individuals as de-ned and enforced b" the courts

roblems with his views:

1. =iscretionar" authorit" in most spheres of government is inevitable.

;ttention should be put on establishing a s"stem of legal safeguard b"

which such power ma" be controlled.

2. #he legislature m ust fre/uentl" distinguish between categories of


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person b" reference to economic or social consideration or legal statusO

we should invalidate legislation which distinguishes between citi7ens on

grounds which are irrelevant unacceptable or o+ensive

0 Dule of Law and its limitation

1. Statements of the rule of law embod" a preference for orderl" life within

an organi7ed communit". Stabilit" is a precondition for the eistence of a

legal s"stem. =ictatorship ma" maintain law and order but the rule of

law will thrive onl" when legal restrains appl" to the government.

P=emocrac" in an" sense of the word cannot eist without the rule of

law.Q

2. #he government must be conducted according to the law and that in

disputed cases what the law re/uires is declared b" !udicial decision.

ublic authorities must be sub!ect to e+ective sanctions if the" depart

from law.

3. #he rule of law refers to a bod" of opinions both about what powers the

government should have and about the procedures to be followed when

action is ta?en b" the state. @uman dignit" libert" and democrac" are

ta?en into account.

*0 Dule of Law b" Bohannes *han

The law itself

1. Solemn and based on reason

0 the enactment of laws show clearl"

2. pen to all

0 laws are in order onl" after the" are published b" the government

3. $/ualit" before the law

4. *onsistenc" and stabilit"

0 !udgement b" lower courts are bound b" upper courtsJudiciary

5. #o do !ustice based on reason

- ever"thing outside courts is not within the !udges consideration

- !udges remain impartial especiall" !udges avoid contacting law"ers or

witness prior to the end of the hearing

- !udges write down his reasons of !udgement

6. ;ll hearings are open to public

- ever"one has the right to monitor the !udiciar"

9. Despect for personal rights and libert"


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- onl" with ade/uate reasons can personal libert" be deprived 'proportionalit"

test and necessit" test)

- common laws incline to protect personal rights eg. %rit of habeas corpus

-

ambiguit" in law 0N !udgement in favour of defendants- ;n"one M innocent before convicted

- roof be"ond reasonable doubt

- Dights to submit evidence given to defendants

=0 latos view

P,f the law is the master of the government and the government is its slave

then the situation is full of promiseOQ

$0 ;ristotles view

PO $ver" human soul must have feeling whereas a law has noneOQ

Despect for the law 'the rule of law) guarantees the impartialit" of the ruler b"

preventing him eercising his power to pursue his own interests. ,t is because

the ?ing does not ma?e the law the law ma?es the ?ing.

Dousseau: Rou are alwa"s free when "ou submit to the laws but not when "ou

submit to a manF for in the second case , must obe" the will of someone else

whereas when , obe" the laws , am onl" compl"ing with the public will which

is as much mine as an"one elses.

$istence in histor" of t"rannies is on the contrar" an empirical argument for

the ecellence of the rule of law.

'1);ll laws should be prospective open and clear

- obscure imprecise law is li?el" to mislead or confuse others.

'2)Laws should be relativel" stable.'3)#he ma?ing of particular laws should be guided b" open stable clear and

general rules.

- articular legal orders are used b" government to introduce >eibilit" into

the law.

- #wo rules are noted: confer the necessar" powers for ma?ing valid orders

and impose duties instructing the power0holders how to eercise their

powers.

'4)#he independence of the !udiciar" must be guaranteed

- litigants can be guided if !udges appl" the law correctl"


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'5)atural !ustice must be observed

'6)#he courts should have review powers over implementation of other

principles involving legislation and administrative action

'9)#he courts should be easil" accessible- long dela"s ecessive costs ma" turn law into a dead letter

'8)#he direction of crime preventing agencies shouldnt be allowed to pervert

the law

Aour t"pes of !ustice:

- Aormal !ustice: formal process and legislation

- rocedural !ustice: fair and impartial administration of !ustice e/ualit"

before the law due process of law open !ustice 'access to !ustice)

- Substantive !ustice MN distributiveCsocial !usticeF remedialCcommutative

!ustice

- *ivil disobedience

,mportant values ( preference for individual libert":

- presumption of mens rea

- presumption of innocence

- non0retrospective operation of law

-strict interpretation of penal law

- no deprivation of private propert" without compensation

overned according to law: a legal framewor?

Aair and impartial administration of !ustice ( monitoring compliance

procedural fairness and remedies

Arom procedure to content: human rights and democratic form of

government

Separation of power:

S"stem of *hec?s and balances ( as power corrupts and absolute power

corrupts absolutel"

- legislative sets down the rules of the game

- eecutive acts according to the rules

- !udiciar" ensures compliance with the rules and is the -nal arbiter of what

the law is: !udicial review


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Sources of Hong Kong LawConstitution:

*oncreteCcodi-ed 'narrow) constitution:

- =ocument's) comprises the written constitution: the most basic rule are

all together in one place.

- asic Law is regarded as the concrete constitution of @.

;bstractCun0codi-ed 'broad) constitution:

- articular legislation or decisions b" the courts contributes to the

comple of precepts which fall into the categor" of constitution.

- Some decisions of the *.

- #he common law.

- rerogative.

- rdinances of the @ legislature.

- ractice or custom of the legislative branch.

@ has both concrete and abstract constitution.

ther characteristics include:

- ,t is a controlled constitution ( there are special procedures to change the

rules.'an" amendments had to be made b" the *S*)

- ,t is a regional constitution. 0N therefore in *S*s e"es L M regional

law and its power to interpret it is normal

- %hile in formal terms the legislative and eecutive branches of

government are distinct there are lin?s between them.

- ,ndependence of !udiciar" ( the court en!o"s high degree of autonom" (

!udges belong to a

government.

*onstitutional documents:

- PRC Constitution Art !": regard HK as a SAR

- Sino0ritish Boint =eclaration 1T84- asic Law ;rt 8 18

Constitutional develo#ment:

- #he convention of *huenpi #reat" of an?ing 1842 the e?ing

*onvention 186& and the e?ing *onvention 18T8 #he Boint

=eclaration 1T84 asic Law 1T8501TT&*hange of Sovereignt" 1

Bul" 1TT9

Princi#al sources of HK law:


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'1)#he asic Law

'2);pplicable ational Laws of the D*

'3)Legislation

'4)Laws previousl" in force in @ as provided for in ;rt 8'a)rdinances and subordinate legislation

'b)#he common law 'decisional law) and e/uit"

'c) *ustomar" law

$ther sources:

'1)#he constitution of the D*

'2) ,nterpretations made b" *S*

'3)pinions of the preparator" committee for the @S;D established b" the

*

"% The &asic Law

- ,t is the highest source of law apart from *hinese *onstitution ';rt. 18)

- ,t regulates other sources ( supreme law ( ';rt. 11)

- @ legislations cannot amend the L. #he power of amendment is vested

in the *. ,f it is initiates b" @S;D at least 2C3 of the legislative council

must support.

- #$: une/ual distribution of power btw D* @ and D* M dominant

personalit" 0N for stabilit" harmon" and social welfare

Article 2: HK en'oys high degree of autonomy #he ational eoples

*ongress authori7es the @S;D to eercise a high degree of autonom" and

en!o" eecutive legislative and independent !udicial power including that of

-nal ad!udication in accordance with the provision of this Law.

Article 8: Law #reviously in force in HK are maintained #he laws

previousl" in force in @ong ong that is the common law, rules of equity,

ordinances, subordinate legislation and customary law shall be maintainedecept for an" that contravene this Law and sub!ect to an" amendment b" the

legislature of the @S;D.

Article 11: Legislature cannot contravene &Lno law enacted b" the

legislature of the @S;D shall contravene this LawO

Article 18:(ational Law listed in Anne) *** a##lied to HK #he laws in

force in @S;D shall be this law the laws previousl" in force in @ as provided

in ;rticle 8 of this law and the laws enacted b" the legislature of the Degion.


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National laws shall not be applied in HKSAR except for those listed in Annex III

to this aw!#he laws listed therein shall be a##lied locally +y the way of

#romulgation or legislation +y the Region. #he S** ma" add to or

delete from list of laws in ;nne ,,, after consulting its *ommittee for the asicLaw of @S;D and the government of the Degion. aws listed in Annex III to

this aw shall be con"ned to those relating to defence and foreign aairs

as well as other matters outside the limits of the autonomy of the

Region as speci-ed b" this Law. ,n the event that the S** decides to

declare a state of war or bu" reason of turmoil within the @S;D which

endangers national unity or security and is be"ond the control of the

government of the Degion decides the Degion is in a state of emergenc" the

*entral eoples government ma" issue an order appl"ing the relevant national

laws in the Degion.

Article 19: ,efence a-airs O#he courts of the @S;D shall have no

!urisdiction over acts of state such as defence and foreign a+airsO

Section 4 of BL: The Judiciary .Articles /01234

Article 18: *nter#retation and amendment of &L O power of

interpretation vested in the *S* O HKSAR courts may inter#ret

#rovisions of the &L which are within the limits of autonomy of the

HKSAR O *ourts ma" also interpret other provisions but 'udicial referral

mandatory when the inter#reting e)ce#ted #rovisions in a 5nal

'udgment that is not a##eala+leO (PCSC shall consult the &asic Law

Committee for inter#retation%

Article 1!": Su##lementary Provision Upon the establishment of

@S;D the laws #reviously in force in HK shall +e ado#ted as laws of

the Region e)ce#t for those which the SC(PC declares to +e incontravention of this Law. ,f an" laws are later discovered to be in

contravention of this Law the" shall be amended or cease to have force in

accordance with the procedure as prescribed b" this Law. =ocuments

certi-cates contracts and rights and obligations valid under the laws

previousl" in force in @ shall continue to be valid and be recogni7ed and

protected b" the @S;D provided that the" do not contravene this Law.

6% A##lica+le (ational Laws of PRC

- ;rticle 18 of L.


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- *on-ned to those related to ag

resolution on the ational =a" order on the ational $mblem

declaration of the government on the #erritorial Sea ationalit" Law.

- *hanges to ;nne ,,, must be made b" the *S* with prior consultation

with the S;D government and with the asic Law *ommittee.

- ational Laws are to be given e+ect icts between national laws applied to @ through legislation

or promulgation and local laws no hierarch" e/ual standing

national laws will #revail if it concerned foreign a-airs unless its


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a##lication did not satisfy the criterion laid down in Art "/%

- Gague concepts li?e


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2. ational laws prevail when there are con>icts between national laws

and @ laws on foreign a+airs.

3. eneral principles on modi-cations of laws.

4. Dules for interpretation of laws.5. Dules for substitution of


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Hueen to authori7e the @ legislature b" an order in *ouncil to repeal or

amend an" imperial legislation appl"ing to @ as well as to ma?e laws

having etra0territorial operation. #hree orders were passed:

'1)Depeal or amend an" imperial enactment


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conditions:

1. so far as the" were applicable to the circumstances of @ or its

inhabitants

2. sub!ect to such modi-cations as these circumstances ma"re/uire

3. sub!ect to an" statutor" amendment 'whether imperial or local)

- =e-nition of common law in ;pril 1TT8 b" ;daptation of Laws

',nterpretative rovisions) rdinance was common law in force in @ong

ong.

- %ill decisions of superior $nglish courts bind @ in a continuous basisE

L ;rt 84 authori7es the courts to


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'b" 1843 legislature)

- ;rt 8 and ;rt 4& of L.

- *hinese law ( *hinese imperial codes.

-

*ustom ( Local customar" law.- L onl" retained customar" law 'li?e land in .#.) but not imperial

*hinese law.

- Aeatures of customar" law:

1. *ustomar" law survived in @ famil" law and land in the

ew #erritories.

2. Ger" little famil" law according to traditional concepts now

eists due to the legislature reform in 1T91 and as man" of

the people who possess the rights under relevant customar"

law have died.

3. Aleible and varied.

4. ,nade/uatel" administered b" @ common law s"stem as

precedents that !udges relied on con>icted the >eibilit" and

locali7ation of these laws.

5. #he" cannot survive if found contradictor" to fundamental

principles of $nglish laws.

6. #he" can modif" received $nglish law or a+ect interpretation

of local statue li?e


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own.

- ;rt 158'3) of L *A; can see? interpretation from the *S* of the

provisions which concern the relationship between the *entral

;uthorities and the S;D or those within the responsibilit" of the *entral;uthorities.

- Dight of ;bode of mainland born children incident in 1TTT *S* re0

interpret the relevant provisions *S* has legal and constitutional

power under L.

$#inions of the #re#aratory committee for the HKSAR esta+lished +y

the (PC:

- reparator" committees opinions showed the true legislative intent of

the relevant provision.

Controversies regarding issue of inter#retation of the &L:

- power of interpretation vested in the *S*

- @ courts ma" interpret those provisions wCin the autonom" of the

@S;D

contradictor" 0N wtM wCin provisions in the autonom" of S;DE %ho has the

interpretation powerE

- *A; shall before rendering !udgment see? an interpretaiton from the

*S* on provisions concerning a+airs which are the responsibilit" of

* or concerning the relationship between the *entral ;uthorities and

S;D

- *lassi-cation test: 1. outside @ autonom"F 2. about D* governmentF

3. relationship of S;D and D*

- ecessit" test: !udgement W render without interpretation 'Dight of

;bode *ase 0N importantE)

- #he scope of *S* to interpret M great 0N legislative interpretation

- ,nterpretation power of *S* could be eercised an"time

Case Study: Right of A+ode Case

0 ;rt 24: @D include children born outside of @ of @D who are *hinese

nationals

0 1&C9CT9: enacted that certi-cate of entitlement and one0wa" permit needed

and was made e+ective on 1C9 0N retros#ectiveX ;gainst common lawF also M

challenge to ,mmigration rdinance

0 *A; ruled that this is unconstitutional and all children born b" @D outside

@ has right of abode in @ and gave !udgement claiming that *A; had full


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authorit" to review the legislative acts of *S* for the purpose of determining

whether the" are inconsistent with L

0 *A; regarded it a case within its domain M domestic provision

0 *S* M immigration polic"0 attac?ed b" *S* as putting themselves higher than the *S* and turning

@ into an independent political entit"

0 @S;D appealed to *S* '*A; M court of -nal ad!udicationE) and b"passing

the !udiciar" of @ MN respect to rule of law in @E r use law as a means to

!ustif" its wanted endsE Deferring to a political bod" rather than a

legislativeC!udicial bod" 0N separation of powersE =omestic provision onl" 0N

surrender of @s !udicial independence in regard to domestic provisionE

0 *S* 0N power to interpret whole of L

0 *A;: clari-cationC recti-cation MN succumb to legislative interventionE

$ecutive immigration polic" and the legislatures decree 0N trumped !udicial

decisionsE

0 $ecutive decisions N !udiciar"E Separation of power in @ collapseE

$ther cases of inter#retation:

1st: non0adoption of previous law in force in @

2nd: right of abode case

3rd: term of oIce of *$

ther controversial cases:

1. ational Alag *ase

0 2 charged with violation of S9 of ational Alag and ational $mblem

rdinance 0N *; found for the charged found that it M freedom of epression

0 *A; 0N allow appeal of govt as it M constitution

MN in the face of battering from the public regarding the issue of patriotism

*A; "ield to public opinionE Areedom of epression W N public orderE ,**D in@E

2. on0prosecution of Sall" ;w

0 charged with conspirac" to arti-ciall" in>ate the circulation of @ Standard

0 not prosecuted 0N s $lsie Leung said evidence W against s ;w 'evidence

consideration)

0 public interest consideration: Sing #ao M big compan" and during eco

downturn its possible collapse M bad message to the international communit"

and potential social e+ects would be great 0N unemplo"ment collapse of


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media

MN issue of concern: rich people M W prosecuted when evidence ma" prove

against themE $/ualit" before the law one of the ma!or pillars in the rule of law

in @E *lose relationship with *$ M cause of non0prosecutionE $sp when other3 defendants M convicted

MN inconsistenc" in bringing prosecution: should be brought to court but did

not discretion of Secretar" for Bustice used at a wrong areaE

3. ublic rder rdinance

MN originall" M part of law reform to be in line with standard of the ,**DF

banned b" *S* to be part of L 0N W restoration of these laws to pre0

amendment version but a chance to enact new laws

0 amendments M undermine the abilit" of @S;D govt to maintain public

orderE

controversies:

1. government has the power to prohibit a public meeting or procession or the

operation of a societ" on the additional ground of


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man" religious groupsEC use of eecutive means to wrench out voices of Aalun

ongE olitical censorship in placeE

6. Areedom of $pression

0 D#@ MN wholl" government funded and en!o"s complete editorialindependence 0N political pressure because of airing programmes regarding

#aiwan issues

0 di+erent censorships implicitl" imposed when criticism is made towards D*

0 increased in defamation suit against media

0 proposal of a set up of press council: self0 censorshipE pen to manipulation

of the government

MN are voices against the government sti>edE ;re media less protected nowE

9. Legislation of ;rticle 23

0 give arbitrar" power to police to sei7e materials

0 W relationship with foreign societies deemed as illegal when do so

0 !ournalists are concerned about the subeversion and session clauses 0N

reporting on sensitive issues M advocating the splitting up of *hina

MN use as a tool to curb societies growthE %hat about politicall" sensitive

organi7ationsE *urb voices from oppositionE

MN individual liberties infringed 0N power of law enforcement became greater

MN ma" discriminate people against raceC communit"


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Access to JusticeA right of access to the legal system:

Legal aid ( basic right- $/ualit" before the law 'L 24)

- Dights of access to court as an inherent right to fair hearing

- Dight to con-dential advice and choice of law"er L 35

- ,ntegral part of administration of !ustice

- $/ual access to !ustice

- Destoring e/ualit" of arms and assisting the under0privileged groups

- *ontributing to development of lawCpublic interest litigation

- @igh /ualit" of services epected b" communit"

$+stacles to Access to Justice:

1. Lac? of legal ?nowledge and ignorance of legal rights.

2. Lac? of legal advice.

3. *ompleit" of procedure ( issuing writs preparing statements of claim

see?ing discover"Oetc.

0 more number of cases and more people are aware of the procedural !ustice

4. *osts.

0 advocates are paid in time rate 0N incentive is lower to speed up

proceedings

5. Lac? of legal representation.

hy legal aid;

1. $/ualit" before the law. 'D0;rt 1& L ;rt 24 25)

2. Dight to fair hearing

3. Dight to con-dential legal advice and choice of law"er 'L art 35 @D).

$g. ;ccess of !ustice for unrepresented litigants in serious cases

HKSAR and .u .ai /ung 0 Another 123345 4 HKR6- W absolute right of ever" person facing criminal proceedings to have

legal representation at public epense ( where a = wished to be

represented the decision to whether legal aid would be granted was

generall" aside from other considerations dependent on the =s

inabilit" to a+ord services of legal representatives

- Budges have discretionar" power to override the decision of the =irector

of =L; when the consideration factors are di+erent eg. The #rocedural

di


24/42

'ustify denying legal re#resentation and the 5nancial

considerations had +een given undue weight

- verall compleit" should be considered from the perspective of a

la"man 0N when case M too complicated la"men W professional?nowledge to bring defences eg. Stabili7ing in>uence of a counsel0N

denied fair trial

- Unrepresented la"men at court 0N false econom" due to substantial

lengthening of the proceedings and b" putting the prosecution to strict

proof on ever" issue at trial

Considerations:

- ;n" con>ict of interests when legal aid is funded b" public revenueE

- =esire to protect the need" v saving of scarce public resources.

- Hualit" of services ( high /ualit" is epected from the public.

- ,ndependence.

- *ontrolling litigation costs ( transparenc" of legal charges contingenc"

fee 'onl" charge when successful) class action 'one single case would

be act as a representative to bene-t the whole class of people in

societ")

Cost #ro+lem > dealt +y Legal Aid in Hong Kong

Legal Aid ,e#artment

=uties:

- providing legal representation at civil and criminal trial at the =istrict

*ourt or above including Lands #ribunal some coroners in/uest 'legal

assistance should #e $ro%ided to $ersons who are li&ely to face

a reasona#le chance of criminal $rosecution that would lead to

a 'ail sentence or loss of li%elihood as a result of gi%ing

e%idence at a coroners( in)uest* Such legal assistance is only

con+ned to ad%ice only, #ut not legal re$resentation!) and ental

@ealth Deview #ribunal.- #he scheme does not cover magistracies ecept for committal

proceedings.

- o person defending criminal charges or ta?ing or defending civil

proceedings with reasonable grounds for should be denied access to

!ustice b" lac? of means.

$ligibilit":

- o restriction on grounds of residenc".

eans test:

- Ainancial eligibilit".


25/42

Ainancial resources of the applicants spouse are included in those of the

applicantthe" are considered as a single economic unit.

Should there be a reformE

,A :- the" should support each other

- prevent re0allocation of resources between the two

- treat -nance together 0N if K not enough 0N serves as a resistance and W

bring unnecessar" litigation

,A R$S:

- women has become more independent in modern societ" 0N resources

ma" be separate between the couple

oints to thin? about:

- if there is a reform 0N ma" attract rich couple to appl" for legal aid

- can there be a merger of the twoE ( eg. Separate K when resistance

from husbandCpartner M proved domestic violence

Ainancial resources of the parents of an applicant who is an infant are not

counted as those of the infant infants are considered as separate

entities.

Should there be a reformE

- childrens right should be protected more vigilantl" in modern societ" 0N

rights of children to bring legal action should not be !eopardi7ed

- if parents have to subsidi7e for the litigation and the damages is not for

parents 0Nthe incentive will be reall" low

- therefore M should ensure access to !ustice of children

Ainancial resources of emplo"ees when emplo"ers appeal against decisions

Y Labour #ribunal 0N present situation: emplo"ees have to pass means test

before getting legal aidShould emplo"ees be able to get legal aid b" waiving the means testE

- emplo"ees are usuall" Y harassment of the emplo"er

- emplo"er with more K can control the litigation process 0N costs

incurred M ver" high 0N emplo"ees ma" not have enough -nancial

resources to stand against the appeals

- Legal aid scheme

n the basis of ones -nancial capacit" ( Sum of his annual


26/42

his


27/42

from such propert" the legal costs incurred on the applicants behalf

which could not be recovered from the opposite part": =irectors -rst

charge.

*riminal Legal ;id:- *riminal trials in magistrates courts are not covered.

- Same means test as in civil legal aid.

- o merit test for criminal trial due to presumption of innocent.

- erits test for appeal.

Legal aid funding:

- Aunded b" the government a government department con>ict of

interest.

- o ceiling on the spending on each publicl"0funded legal aid case due to

interest of !ustice and interest of the legall"0aided personno ceiling

on total legal aid spending since the number of legal aid applications

number of approved legal aid applications cannot be determined in

advance.

- *an it be done in a more cost0e+ective mannerE

- ublic mone" properl" spentE

;ppeal against refusal to grant legal aid:

- ;ppeal to Degister.

- o appeal where legal aid is refused on means test.

- *ourt ma" order legal aid in the interest of !ustice or grant eemption

from means test and contribution in murder treason or pirac" with

violence 'all of which used to carr" capital punishment).

- Legal representation ma" be re/uired in the appeal. 'but who provides

itE)

Legal Aid Services Council

- ; statutor" bod" set up in September 1TT6 under the L;S* rdinance.- versee the administration of legal aid services provided b" L;=.

- ;dvise the *hief $ecutive on legal aid polic".

- *haired b" a non0oIcial and comprises 8 non0oIcial members and one

e0oIcio member.

- ublicl" funded.

- onitoring L;=:

Aormulate policies governing the provision of services b" L;= and

give advice on the polic" direction on L;=.

eriodicall" review the wor? of L;= and ma?e arrangements as are


28/42

epedient and proper to ensure the eIcient and economical

discharge of its functions and provision of legal aid services.

Deview L;=s services and its development plans.

*onsider and advise on L;=s estimates of ependiture.

- ,t is an advisor" bod" on publicl" funded legal aid services:

$ligibilit" criteria scope of services mode of service deliver" future

plans for improvements funding re/uirements and future

development of legal aid polic".

Aeasibilit" and desirabilit" of the establishment of an independent

legal aid authorit".

%or?ing part" on the institution of legal aid recentl" established.

,uty Lawyer Service

- Dun !ointl" b" the @ong ong ar ;ssociation and the Law Societ" of

@ong ong.

- Aunded b" the government.

- *onsists of 8 nominated members from the legal profession and 3

appointed la" persons.

- rovides legal representation in the magistracies 'trial sentence and

mitigation) coroners court !uvenile court one0viewer ,= parade

haw?ers appeal and etradition proceedings.

- ossible con>ict of interests as =LS wor? id a source of business

opportunities for the legal profession.

- eans test for trial gross annual income not eceeding K12933& and

a handling fee K3&& but discretion to grant legal representation when

means test is not satis-ed but in the interest of !ustice to do so.

- erit test whether applicant in !eopard" of losing libert"F whether a

substantial /uestion of law is involved.

- Aree Legal ;dvice Scheme

+ers free legal advice at selected =istrict Ices. ;ll members enrolled in the =ut" Law"er Scheme shall ta?e part in

this scheme.

;ppointment through =istrict Ice and referral agencies.

- perates a telephone hot0line for legal en/uiries.

re0recorded tapes eplaining brie>" the law in a particular area of

law.

$isting tapes cover over 98 topics in 8 areas.

,n *antonese utonghua and $nglish.


29/42

$ther Legal Advisory Services:

- ar free legal services scheme.

- *onsumer *ouncil legal action fund.

-

$/ual pportunities *ommission.- ;d hoc legal advice scheme o+ered b" oIces of Legco and =

members. 'Legco membersCdistrict board members who are law"ers

giving advice)

- ;micus curiae 'Ariends of the court members of the bar not acting

for an" part" giving assistance to the court onl")

- roposed Budicial *enter

- ilot scheme to on Legal ;id for ediation in atrimonial *ases

- ;lternative =ispute Desolution 'commercial cases)

Contem#orary *ssues:

- ,ndependence of Legal ;id Service

ublic perception that as L;= is a government department it would

not be independent of the government.

3 options: maintaining status /uoF an independent legal aid

authorit"F independent monitoring bod".

overnment favored the last one as it is less costl" and to avoid

disruption to present services.

Setting up Legal ;id Services *ouncil.

- Deview on eligibilit" re/uirements

$ligibilit" re/uirements should be responsive to changing econom".

nl" the need" are entitled to assistance b" public fund.

o imposition of ceiling on ependiture on legall" aided cases a

strength of @ s"stem.

=ut" of assigned law"ers to act responsibl" and in good faith vis a

vis legal aid fund.

*ontroversial areas: minor s#ouses visitors illegalimmigrants.

- $pansion of Supplemental Legal ;id Scheme

#oo conservativeE

DesourceE

%hat are the priorit" areaE

=efamation casesE

=iscretionar" approachE

Review on contingency fees system

- %hat are conditional feesE


30/42


31/42

0 commercial cases in which an award of damages is the primar"

remed" sought

0 product liabilit" cases

0 insolvenc" cases0 emplo"ees compensation cases

0 professional negligence cases

W applicable to criminal famil" cases with welfare of children

defamation cases and cases in which an award of damages is not the

primar" remed" sought

3. ;n" success fee and after0the0event insurance premium agreed b" the

claimant with his law"ers and insurers respectivel" should not be

recoverable from the defendant.

4. #he methodCcriteria for -ing success fees should as far as practicable

be5)ed +y legislationand determined b" involving interested bodies

including insurers legal practitioners and etc to see if common ground can

be reached on reasonable methods and criteria for setting the level of

success fees. #he level of success fees should also +e ad'usted

according to the stage of litigation and staged success fees should

+e ado#ted%

5. # discourage frivolous claims there should be a ca# on the success

feewhich is epressed as a percentage of normal costs.

6. ; claimant utili7ing conditional fees should be re9uired +y law to

notify the defendant of this fact and that the court should have

discretionar" power to re/uire securit" for costs in cases.

9. #he relevant legislation and subsidiar" legislation should be simple and

clear to avoid frivolous technical challenges. Client1care #rovisions

should +e set out in #rofessional codes of conduct so that trivial

+reaches can +e dealt with +y the #rofessional +odies in stead of

the courts%8. $+orts should be made to ensure that professional bodies adopt

appropriate rules to safeguard clients interest and have e+ective

disciplinar" measure to deal with and deter breaches.

T. Degulations should be drawn up to enable engaged in the provision or

purchase of legal services en masse to ma?e use of collective conditional

fee arrangement.

1&. nl" the 4 fee arrangement should be allowed.

11. ;s the feasibilit" of conditional fee regime depends upon whether there

is insurance available to cover the opponents legal costs if the claim is


32/42

unsuccessful there is need to conduct an in0depth stud" of the commercial

viabilit" of ;#$ insurance.

12. iven the success of SL;S in widening access to !ustice b" using event0

triggered fees on a self0-nancing basis considerations should +e givento e)#anding SLAS +y increasing the 5nancial eligi+ility and the

sco#e%

13. ;n independent bod" should be set up to screen a##lications for the

use of event1triggered fees to brief out cases to law"ers to -nance the

litigation and to pa" the opponents legal costs should the litigation prove

unsuccessful. ;pplicants would not be mean0tested but should satisf" the

merits test. The #ro#osed +ody would ta?e a share of the

com#ensation recovered and the lawyers would +e #aid on a

conditional fee +asis% Litigants with a good case would then +e

a+le to +ring their cases to court without 5nancial e)#osure%

Unrepresented litigants

; most diIcult problem.

ediation and alternative dispute resolution.

Budicial Desources *enter.

- Simpli-cation of trial procedure


33/42

The doctrine of Stare ,ecisis and Case

Law Techni9uesRatio dictum or or+iter dictum:

Datio decidendi ( a proposition of law which forms the basis of the courts

decision in the contet of material facts ( binding ( court in a higher

position in the hierarch" binds the lower one.

#he ratio of each case must ta?e into account the facts of that particular

case and then generali7e from those facts as far as the statement of the

court and the circumstances indicate is desirable. #he greater the number

of facts in the ration the narrower its scopeF conversel" the fewer or the

higher the level of abstraction the broader the reach of the ratio ( the

more facts situation it covers.

#et boo? de-nition: fromHalsbury7s aw of &ngland,: P#he enunciation of

the reason or principle upon which a /uestion before a court has been

decidedO the general reasons given for the decision or the general

grounds upon which it is based detached or abstracted from the speci-c

peculiarities of the particular case which gives rise to the decision. %hat

constitutes binding precedent is the ratio decidendi.Q

rbiter dictum ( ;n" statement of law carefull" considered was not the

basis of the decision is orbiter ( though not binding of ver" great

persuasive weight.

#et boo? de-nition: PStatements which are not necessar" to the decision

which go be"ond the occasion and la" down a rule that is unnecessar" for

the purpose in hand.Q

3 elements of being bound:

#he precedent must have been pronounced b" a court that stands in

the hierarch" in a position to bind the present court. ( stare decisis #he proposition of law must have formed the ratio of that decision.

,t must be relevant to the facts of the present case.

,eclaratory Theory:

*ommon law is not made and changed b" !udges but discovered and

declared b" them.

Budges do not pronounce new law but to maintain and epound the old one.

; prior decision does not constitute the law but is onl" a !udicial

declaration as to what the law is.


34/42

%hen an earlier decision is overruled the law is not changed: its true nature

is disclosed having eisted in that form all along.

#he law is alwa"s there. *ommon law is the same since time immemorial.

,ts a process of research and identi-cation rather than invention andcreation.

recedents are evidence of the common law.

,mage of !udges sometimes conve"ed b" the declarator" theor" as almost

machine0li?e formalistic automatons operating entirel" impartiall" in

-nding and appl"ing law.

Realistic Theory:

#he common law is !udge0made law.

#he common law !ust as the rules of e/uit" has been invented altered

improved and re-ned from time to time.

Law was the product of !udicial will. ,t was not discovered but created.

=eveloping and creating new law in order to bring law to be in line with

social changes

#he retrospective e+ect of a change made b" !udicial decision is bound to

operate to some etent

*ommon law is a living s"stem of law ( Lord o+ @he must act within

the con5nes of the doctrine of #recedent +ut that the change so

made must +e seen as a develo#ment usually a very modest

develo#ment of e)isting #rinci#le so can ta?e its #lace as a

congruent #art of the common law as a whole

Stare decisis:

$tracting ratio from a precedent case which material facts are similar and

appl"ing the ratio to a new case.

ot all previous cases are bind or oblige. ,t depends on the hierarch" of

courts. ; lower court is bound to follow the decision of a higher court. #hree conditions of Stare decisis:

- an earlier case

- factual similarit"

- a particular relationship between the decision0ma?ing authorities

ertical Stare decisis:

*ourt of Ainal ;ppeal ( ,ts decision is binding on all lower courts.

*ourt of ;ppeal ( ot bound b" decisions of Aull *ourt. #he *ourt of ;ppeal

is obliged to follow ever" ratio in ever" prior *ourt of Ainal ;ppeal case. ,ts

decisions are binding on all lower courts and tribunals.


35/42

*ourt of Airst ,nstance ( ound b" the decisions of the Aull *ourt the *ourt

of ;ppeal and the *ourt of Ainal ;ppeal. ,ts decisions are binding on all

lower courts and tribunals.

=istrict *ourt ( ound b" the decisions of higher courts. ,ts decisionsgenerall" not binding on lowers courts but their decisions will be followed

in the absence of contrar" authorities.

agistrates coroners and tribunal oIcers ought to obe" the =istrict *ourt

and the @igh *ourt.

HoriBontal Stare decisis:

*ourts being bound b" their own decisions.

*ourt of Ainal ;ppeal (

'i) #here is no direct authorit" on whether *A; is binding on itself

though it is believed that the previous practice governing the Budicial

*ommittee of the riv" *ouncil shall appl" which is that it is

generall" free to overrule a manifestl" incorrect decision.

'ii) ,n the interest of certaint" *A; will onl" overrule its previous

decisions in eceptional circumstances.

'iii) ; decision of *A; ma" not be binding but is still of highl" persuasive

value '1) when a point was assumed sub silentio 'under or in silence

without notice being ta?en or without ma?ing a particular point of

the matter in /uestion) upon which the *ourt has heard no argument

or '2) when there are two con>icting decisions of the *ourt.

*ourt of ;ppeal 0 ,ts decisions are usuall" binding ecept '8oung ) 9ristol

Aeroplane):

'i) its decision cannot stand with a pre01TT9 decision of the @ouse of

Lords or riv" *ouncil or a decision of the *A;F

'ii) there are con>icts with another prior decision of the *ourt of ;ppealF

'iii) when it is satis-ed that the decision was given per incuriam ( ta?ing

in ignorance of a binding authorit" which followed wouldnecessaril" have led to a di+erent result.

*ourt of Airst ,nstance:

- ot binding on itself.

- Later decision of two con>icting decisions of courts of co0ordinate

!urisdiction usuall" to be preferred.

The Privy Council .a 'udicial institution4:

Under ;rticle 8 of the asic Law law previousl" enforced in @ong ong

namel" common law shall be maintained. ;ccording the decisions of the


36/42

oard before 1 Bul" 1TT9 continue to be binding on @ong ong courts.

%hile decisions of the oard after 1 Bul" 1TT9 are no longer binding in @ong

ong the" will still be of highl" persuasive value. ,n accordance with the

declarator" theor" decisions of the riv" *ouncil and the @ouse of Lordsafter the cut0o+ date would continue to represent the common law as at 3&

Bune 1TT9 and thus @ong ong courts would be bound b" those decisions.

@ouse of Lords:

,ts decisions could not therefore have been binding in the @ong ong courts

since:

'i) ,t is the upper house of the United ingdom parliament and is not

part of the hierarch" of our courts.

'ii) *ommon law develops to meet changing circumstances and patterns

of the societ" in which it is applied.

@owever

'i) #he !udges who sat in the @ouse of Lords for the most part sat in the

Budicial *ommittee of the riv" *ouncil and were li?el" to decide the

same wa".

'ii) =ecisions of the @ouse of Lords are so highl" persuasive that ver"

strong !usti-cations are re/uired for an" departure.

ther decisions of the $nglish *ourts or other *ommonwealth Burisdictions (

enerall" not binding though the" are of persuasive value.

,e#arture from stare decisis:

Later court is convinced of error in earlier decision.

De0interpretation of ratio.

=istinguishing the material facts.

verruling.

er incuriam ( which holds that a decision ta?en in ignorance of a bindingauthorit" which if followed would necessaril" have led to a di+erent result.

*hange of social or economical circumstances.

Advantages of #recedent:

,t ma?es law technical and conservative.

Despect for the opinions of ones ancestors as the" are wise and !ust.

%e ought to learn from practical eperience. Budicial law is practical until

the doctrine of precedent comes into force.

Aleibilit" ( constraints imposed b" stare decisis are alwa"s wea?.


37/42

*onvenience ( Stare decisis promises !udicial eIcienc" and a limit to

litigation.

#he scienti-c development of law ( the creation and maintenance of

doctrine the avoidance of unconnected instances the abilit" to predicthow a case will be decided.

#he avoidance of error into which individual !udges unguided b"

precedent might fall or at least the reduction of dissimilarit" amongst

decision0ma?ers.

#he prevention of partialit" or pre!udice.

Li?e cases can be treated ali?e ( Aairness e/uit" and consistenc".

Deliance.

*ertaint".

eight of #recedent:

Status of the court ( the higher the court in the hierarch" the greater its

authorit".

$minence of the !udges.

=issenting !udgments ( the eistence of an" dissenting opinions would

a+ect the weight of a decision especiall" if the dissenting !udge is of

particular eminence.

;ge of the precedent:

ld ( re>ects well0settled law C no longer apt for modern conditions

Deliabilit" of case report.

Hueried or overruled b" subse/uent decision ( whether it has been

overruled distinguished or approved in later cases.

eneral reputation of the precedent en!o"s ( discussion b" scholars and

law0reform bodies.

%hether decision depending on social or economical circumstances.

Pro+lems with law1ma?ing +y 'udges and the doctrine of #recedent:

ver0emphasis the importance of individual decisions.

,t creates law which ma" upset epectations with no advance notice to

those li?el" to be a+ected.

#he s"stem depends on the accidents of litigation. ; bad decision ma"

stand for man" "ears.

ac?ward0loo?ing and conservative.

Slow respond to changing needs.


38/42

Retros#ective Retroactive o#eration:

Laws which epressl" or b" implication operate so as to a+ect acts done

prior to their having been passed.

; progen" 'result) of declarator" theor".

nce there is a !udgment from a higher court overruling an earlier decision

and has stated the changed law the law is so stated applies not onl" to

that case but also to all cases subse/uentl" coming before that courts for

decision even though the events in /uestion in such cases occurred before

the *ourt of ;ppeal decision was overruled. 'events that have occurred

some time J cases in the fuure)

#he law was later retrospectivel" changed could not epunge the past or

alter the facts of histor".

How does a 'udge decide a case;

Loo? at applicable statues.

recedents drawn from reports of previous !udicial decisions.

;cademic writings in interpreting statues.

$+ect of reported cases.

=ecisions of !udges in other !urisdictions.

#he !udge should con-ne to the doctrine of precedent but an" change to

be made must be seen as a development usuall" a ver" modest one of

eisting principle and so can ta?e its place as a congruent part of the

common law as a whole.

,iversity of Common Law

*ase: *heung g Sheong Steven v $astwee? ublisher Ltd ;nor


39/42

The Legal ProfessionA se#arate #rofession:

Solicitors:

- Airm trainee solicitors assistance solicitors partners consultants

- Under the control of Law Societ"

arristers:

- *hambers !unior counsel senior counselCHueens counsel

- Deferral profession

- ;ppear in courts give opinion draft documents

Duali5cations and training .Hong Kong4:

5. *LL

6. ;rticled cler?shipCtrainee solicitor and pupilage

9. ;dmission and call to ar

8. *ontinuing legal education

Duali5cations and training .$verseas4:

1. verseas Law"ers Huali-cations $amination

2. ;dmission on a case b" case basis

3. =iIcult for overseas barristers to wor? here as

there is no eam he can sit to locali7e his

/uali-cations

Profession:

- special trainingCeducationC/uali-cation obtained b" a recogni7ed course of

stud"

- distinct rules and conditions: practice re/uiring the application of that bod" of

?nowledge

- putting clients interest -rst and even above ones own interest 'but dut" tocourt prevails dut" to client whenever theres a con>ict

- code of ethics and disciplinar" proceedings for enforcement

Professional Ethics and ,isci#line:

'a) La" client and solicitors

1. -duciar" relationshipF con>ict of interest ( act with

absolute openness and fairness towards his clientF act in

best interests of his clientF must not put himself in a

position where his own interests con>ict with his dut" to


40/42

his client

2. direct contact with client

3. liabilit" in negligence

4. disciplinar" action

'b) Delationship between barristers and solicitor

1. cannot enter into a contract for their services

2. no oodgate of litigation

4. encourage the bar to ta?e test cases


41/42

Some current controversies:

erging the two professionsE 'onopolies restrictive practices and multi0disciplinar"

practices)

0 practice in US; SingaporeO

Res:

$Icient cheaper

Unnecessar" costs at the epenses of clients and legal aid

Solicitors have a right to audience in lower court and district courts alread"

high courts should be open to solicitors 'Aair and !ustice) '$tension of the

rights of audience)

odern trend in other *ommonwealth countries

*lients have the right to choose solicitors to represent them

#rust relationship between clients and solicitors 'more conducive to

con-dence between them)

ublic interest 1 solicitor J 1 barrister redundant waste of resources

o:

;dvocac" is a specialist s?ill which re/uires concentration and constant

practice advocac" in lower courts is /uite di+erent from those is higher

courts 'ensures the availabilit" of advocates promotes ac/uisition of

specialist ?nowledge and s?ills)

,ndependent ob!ective and impartial legal service because of detachment

personal service foster trust and con-dence 'encourages a more ob!ective

view of the la" clients case)

;dvances ethical integrit"

ool of specialist ( not tied to an" particular law -rm ( can share the

epenses

o demonstrable costs bene-ts 'does not necessaril" lead to less eIcienc"

or greater epenses) Law Societ" refuses to accept the


42/42

- #wo0counsel rule 'a Senior counsel to be accompanied b" a !unior colleague)

was abolished

- #he Law Societ" has relaed restrictions on advertising b" solicitors

;dvertisements

Solicitors:

- onl" promote their practice in a decent legal honest and truthful wa"

- promotions should not be li?el" to mislead or deceive whether b" inclusion or

omission

- should not ma?e an" claim or impl" that the solicitor is or that his practice is or

includes an epert in an" -eld of practice generall". ,t is permissible however

to refer to his ?nowledge /uali-cations eperience or areas of practice

provided that such a claim could be !usti-ed

- should not be in an" manner which ma" reasonabl" be regarded as having the

e+ect of bringing the solicitors profession into disrepute

- should not be inappropriate having regard to the best interests of the public

arristers:

- ma" not do or cause to be done on his behalf an"thing for the purpose of

touting or with the primar" motive of personal ad.

- a" not write for publication broadcast b" radio or television on an" matters on

which he has been or is currentl" engaged as *ounsel unless he can do so

without disclosing con-dential information and without giving publicit" to his

own part in the matter

%h" not rela the rulesE

- advertisement M commerciali7ed

- law"ers should be professional

- ma" mislead the public

%h" rela the rulesE- get more information about law"ers ie price and services the" provide

- law"ers ma" get more customers

Dight of audience:

- if solicitors have right of audience in higher court 0N ma" M lower independence

to the court as barristers have a higher priorit" in dut" to the court but

solicitors priorit" is to the client

- higher charges and more dela"s

cab ran? rule N not abide b" the solicitors N undermine access to !ustice N K

Date post:	27-Feb-2018
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Legal System Intensive Notes

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