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Winter 2011 | The Inaugural Issue

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Gazette

Feature

Neil Kaplan

The Visionary & The Arbitrator

Articles

CUHK Student Applies for Judicial Review of the Mininium Wage Ordinance JD vs LLB: What Do Recruiters Think?

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graduate law students association chinese university of hong kong


Letter from the Editor Vincent Chan, Editor Whether you are in a PCLL or LLM programme, or even if you are a first year JD student, by this time of the year you have a pretty good idea what it is like to be a law student. Let me just set the tone for the first edition of the GLSA Gazette by saying that it is an awesome time to be a law student. The current legal events whether it is in the courts, the Legislative Council, the media, or even the streets are thriving with relevant topics of discussion. I have had the pleasure of working with a great bunch of student writers to put together for you, the students of CUHK, a collection of articles that are meant to both reinforce what you have learnt in lectures and also to stimulate discussion among our student body. As I emphatically promoted at the beginning of the year, our publication represents the voice of the largest law student association in Hong Kong and naturally our focus is to address the main issues that concern our students. In following this theme, our Gazette will feature student views on current cases, the Hong Kong court system, career advice and options, as well the different experiences of being a law student in Hong Kong. We will also be bringing you some of the interesting work experiences of some of our students. For example, in the coming issues you will find out what it is like to work at a barrister’s chambers in the exciting case of Vallejos Evangeline Banao v Commissioner of Registration HCAL 124/2010. On the flip side, we will also be exploring the views of law firms and practitioners regarding issues that are relevant to law students. Find out just how competitive you are in the industry as a postgraduate law student, what are the things that matter to different types of firms, and how the JD really stands up against the LLB. Finally my personal goal as Editor is to share some of my own interests in the areas of International Arbitration and Alternative Dispute Resolution (ADR). In this issue, we are extremely lucky to have Mr Neil Kaplan QC, the founder of Des Voeux Chambers and International Arbitrator, to share some of his experiences with us on arbitration. Readers may or may not be aware of the shift towards mediation and other forms of ADR and the factors causing this shift. I will try to demystify the whole topic of ADR and demonstrate why it is important to be aware of these trends, even if you have decided to follow a traditional career path.

Letter from the GLSA President Eva Chan, President When this board was elected, we asked ourselves: if we had just elected representatives, what changes would we want to see? We whittled our massive wish list into priorities, and from there we had the vision of where we wanted to be one year on. Since then, the GLSA has been busy laying the groundwork to achieve those goals. Over the summer, we re-branded and launched our website. We recognized the need for additional leadership and created the Social Chair position. In October, we held elections for first year JD, LLM and PCLL representatives. As a result, the e-board is larger and represents more student interests than ever before. The biggest change of all is the creation of three committees, which together form the core of our endeavours. The Social Committee kicked off the school year with the back-to-school mixer. Next semester, they will be organizing additional social events as well as the end of year Gala Dinner. The Career Committee initiated sponsorship relationships with prominent law firms in Hong Kong. Key initiatives next term include a panel discussion on alternative careers in law and an arbitration moot. The Gazette Committee created the first ever postgraduate law student publication at CUHK. We hope to create an opportunity for students to express themselves, and critically engage with key issues in the legal community at large. Current plans also include a Used Book Fair at the beginning of next semester. Keep an eye out for details. We are living in extraordinary times. This generation of lawyers in Hong Kong has a unique mandate. Unlike other jurisdictions our autonomy is guaranteed only for 35 more years. The future of the rule of law will largely be determined by our actions. If we are to take on this mandate, we must lay that groundwork now. The talent and dedication of those that work with the GLSA are a constant inspiration to me. These are the individuals who embody the change they want to see in the world. I encourage you to be a part of shaping the legacy at CUHK, and the future of law in Hong Kong. Begin by leaving an impact on where you are now.


GLSA

Our Events Upcoming Events Meet the Team & GLSA

4 Careers Alternative Legal Careers & Careers Poll

Feature Neil Kaplan Visionary and Arbitrator

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Careers JD vs LLB

What Do Recruiters Think?

16 ADR Arbitration?

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17 來自大陸的 同學: 如何成 為香港律師

Opinion Issues raised in the recent Foreign Domestic Helpers’ case

Law Asia Moot & Student Commons

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Be Aware Entering the Courtroom

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Be Aware Weighting In: To the Health of Hong Kong’s Common Law

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School A Student’s Challenge to the Constitutionality of the Minimum Wage Ordinance

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GLSA

GLSA Events Gala Dinner

Winter 2011


GLSA Gazette

Fall Mixer

Meet and Greet

Law School Bootcamp

GLSA

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GLSA

Winter 2011

Upcoming Events Jan 2012

Spring Mixer

Used Book Fair

Alternate Careers in Law Panel

Service Project

LLM Chinese New Year Social

Feb 2012

Young Barristers & Young Solicitors Drinks

Arbitration Moot

Mar 2012

GLSA Elections

GLSA Gala 2012

Details subject to change. Please check our website at http://www.cuhkglsa.org/for the latest information. Stay up to date with the GLSA: www.facebook.com/cuhkglsa www.twitter.com/cuhkglsa

Skadden Social

Nominations Open for GLSA Elections

Get Involved! Interested in contributing to the Gazette? Drop us a line at newsletter@cuhkglsa.org Want to be a part of the GLSA or one of our committees? Email us at glsa@cuhk.edu.hk


GLSA

GLSA Gazette

Meet the Team

(from left to right) Vincent Chan, Editor in Chief Eva Chan, Founder & Editor Kevin Ng, Layout Editor

Gentlemen: Vincent Chan, Charles Ladbrooke, Shing Yan Lau, Kevin Ng, Paul Cheuk, Bob Lin Ladies: Jenny Poon, Margaret Wo, Eva Chan, Flora Tsui, Nicole Szeto, Maggie Lee Photographer: Sunny Wong

Meet the GLSA

Back row: Rex Tan, James Muirhead, Perlman Sam, Jeffrey Liu, Margaret Liao, Stephanie Fung, Sylvia Chong Front row: Robert Chow, Bingshuang Han, Eva Chan, Bonnie Lau, Regina Chow

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School

Winter 2011

Law Asia Moot: Best Memorial

By Michael Ramsden, CUHK Professor The CUHK team won the Trophy for Best Memorial at the Law Asia International Moot Court Competition. The Law Asia moot, entering its 6th year, is an international competition drawing participation from law schools in the Asia-Pacific region. This year, 18 law school teams participated in the competition, held in Seoul Korea from 8-12 October 2011.

Teams were judged on the quality of their oral and written submissions at the competition. Teams made oral submissions to a panel of arbitrators and drafted two 10,000-word memorials for both the claimant and respondent sides. The Trophy for Best Memorial is awarded to the team with the bestwritten submissions. The CUHK team comprised Vinca Yau (LLB3), Stephanie Tsui (PCLL) and Mandy Leung (JD2). The team

was coached by Professor Michael Ramsden, Jacqueline Yeung (PCLL) and Sabrina Lee (LLB 3). Congratulations to the team for winning the Trophy for Best Memorial. This admirable performance is a testament to the team’s impressive research and advocacy skills, and represents the culmination of many months of hard work perfecting their arguments.

Student Commons Editor’s Top International Legal News and Events 1. Euro Bailout Fund Created - potentially contravening

Editor’s Top Local Legal News and Events 1. Hong Kong - Macau - Zhuhai Bridge Cleared for

2. Arab Spring and Palestinian Statehood 3. Occupy Wall-Street 4. South China Sea Disputes 5. UN Human Rights Council Passes Gay Resolution

2. Government Appeals Vallejos Evangeline Banao v

the Maastricht Treaty

Construction

Commissioner of Registration

3.

Split Ruling on Right of Abode for Foreign Domestic Helper in Domingo Irene Raboy v Commissioner of Registration and Another

4. CFA Rejects Appeal, Ending the Nina Wang Fortune Saga

5. Minimum Wage Ordinance passed


GLSA Gazette

A Student’s Challenge to the Constitutionality of the Minimum Wage Ordinance As a third-year part-time JD student

at CUHK, I managed to secure two summer internships early this year. Since the Minimum Wage Ordinance (Cap 608) (“MWO”) came into effect promptly on 1 May (and my first internship started on 4 May), the opportunities have gone with the wind. I applied for legal aid to challenge the constitutionality of the MWO. After three months, my application was rejected and I appealed to the High Court. After a 20-minute hearing which is by no means comparable to our exciting PCLL oral assessments, the appeal was dismissed. I felt aggrieved not because of the effect of the MWO on myself, but because of the arbitrary attitude of the Administration and the Legislature towards law drafting. In simple terms, under s 2 of the MWO, a “student intern” must be enrolled in a full-time accredited programme (“Fulltime Restriction”) while a “work experience student” must be enrolled in a full-time accredited programme and under the age of 26 (“Age Restriction”). The two restrictions undoubtedly constitute differential treatment as they effectively keep those part-time or over-age post-secondary students away from any internship paying below the statutory minimum wage. Differential treatment constitutes discrimination unless it is justified. A three-part justification test is set out by the Court of Final Appeal in Secretary

School Philip Cheng

“...high quality drafting of a small piece of legislation can make the lives of hundred thousands of people much easier.” for Justice v Yau Yuk Lung Zigo and Anor [2007] 3 HKLRD 903, which states that in order for differential treatment to be justified, the difference in treatment must (1) pursue a legitimate aim, (2) be rationally connected to the legitimate aim, and (3) be no more than is necessary to accomplish the legitimate aim. It is apparent that the restrictions imposed on the two exemptions are generally designed to prevent abuse and exploitation (LC Paper No. CB(2)1818/09-10(02)). However, neither the Administration nor the Legislature has fully explained the genuine need for imposing the restrictions to pursue the aim of preventing abuse, their rational connection to the aim and their necessity. 1. Full-time Restriction It seems fairly accepted that there are so many part-time students inclusion of which will open a floodgate to abuse. This may be the reason why the Administration has not provided any figures to justify the exclusion of parttime students from the exemptions. According to the statistics provided by the Education Bureau, there were about 151,000 full-time and 150,200 parttime post-secondary students in the 35 post-secondary and higher education institutions in Hong Kong in the academic year 2010/11. It is difficult to

see why the part-time post-secondary students, the number of which is controllable and predictable, would be particularly susceptible to abuse. If the Administration is confident and willing to exempt the 151,000 full-time students from the MWO, there needs to be justified as to why their 150,200 part-time counterparts ought to be treated differently. 2. Age Restriction Again, there is no official explanation on why an age limit of 26 is set. The Administration only refers it to the age requirement of 25 or below under the Financial Assistance Scheme for Postsecondary Students (LC Paper No. CB(2)1818/09-10(02)), which has nothing to do with the purported aim or the legislative purpose of the MWO. Besides, the overlap and inconsistency between the two exemptions as well as the 59-day limit (s 7 of the MWO) has been causing much inconvenience to employers and post-secondary students seeking internships. Since the MWO has been implemented for a relatively short period of time, its effect on the 300,000 post-secondary students in Hong Kong remains to be seen. Nonetheless, I have already learnt a lesson: This is the first time I realize how a high quality drafting of a small piece of legislation can make the lives of hundred thousands of people much easier.

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10 Feature

Winter 2011

Neil Kaplan The Visionary The Arbitrator

Exactly 50 years ago, Neil Kaplan started law school at King’s

College London. Unlike many postgraduate law students, he had always known he was going to be a lawyer. His mother had decided for him even before he was born that it was to be his profession.

Nicole Sze-to

At the time he became a barrister, the word “arbitration” was not mentioned to him even once. In truth, the way he got involved in arbitration was, as he puts, “purely serendipitous”. Today, 30 years after the beginning of his arbitration career, he is recognized as a key contributor to the development of arbitration in Hong Kong. Mr Kaplan is currently International Arbitration Advisor to Mallesons Stephen Jaques in Hong Kong. What brought you to Hong Kong in the first place? I had been at the bar for 16 years in London, and my friend became Attorney-General in Hong Kong. He was looking for people from the London Bar to help improve the A-G’s Chambers over here. So I came to help set up a civil litigation practice within the A-G’s Chambers, which was great fun. I enjoyed it immensely, and as I could decide which cases I took, my success rate went up enormously. I did this for three years before I set up my own chambers, which is now Des Voeux Chambers.

At the time he became a barrister, the word “arbitration” was not mentioned to him even once. In truth, the way he got involved in arbitration was, as he puts, “purely serendipitous” In 1990, I became a High Court Judge, and in charge of the Construction and Arbitration List. Then I decided to become an arbitrator because I

had already done so many cases with arbitration, and this coincided with the introduction of the UNCITRAL Model Law in Hong Kong. It was fun because it was like fashioning a new jurisdiction, and I got to do, in my early fifties, what most judges might do in their sixties or seventies. How did you become involved in arbitration? How I got into arbitration is purely serendipitous. One day in 1978, one of my pupils came to me with a piece of paper and said, “Hey Gov, sign here! It’s an application to become a member of


Feature

GLSA Gazette the CIArb.” Then he gave me another piece of paper and said, “Okay, now sign here! That’s an application to become a fellow.” So I signed, but I had never done a single arbitration before in my life! Two weeks later, I got a letter that told me to go in for an interview. I was very lucky, because the rules would change the following week, and even

“Arbitration is always going to be the first port of call for international businessmen so we have to make sure we provide a service in arbitration.” Lord Denning would have to take an exam. So without taking a single exam, three gentlemen congratulated me on becoming a fellow of the CIArb. When I arrived in Hong Kong in 1980, there was a big discussion on whether to adopt the 1979 Arbitration Act from England, and whether we should have an arbitration centre here. The Attorney-General said to me, “You’re a fellow of the CIArb - you must know all about arbitration. You must represent the government on this committee.” This committee later became the council for the HKIAC. So that is how I got thrown into arbitration. The lesson from that was that you have to be at the right place at the right time. What is your greatest learning experience from conducting arbitration in Hong Kong? Helping to set up the arbitration centre as the Chairman and promoting Hong Kong all over the world. It gives me great satisfaction to see something I’ve worked on from the very beginning thrive and also to see arbitration receive more money and support from the government.

How do you see the development of arbitration in Hong Kong? One aspect is the statutory framework I think we can justifiably be proud that we’ve kept on amending the law. It is all cutting-edge stuff. I think we have a good statutory framework that is always under review. Arbitration is always going to be the first port of call for international businessmen so we have to make sure we provide a service in arbitration. It is important for arbitration to keep its act up and it is very dangerous if arbitration mirrors the litigation process, because people try to get away from that. How do you see Hong Kong as an international arbitration centre? Hong Kong is a major player as an international arbitration venue. It is difficult to compare it to London or New York because it is so much smaller. The legal profession is much bigger in those places - there are many more experienced arbitrators.

“You get the added advantage of cultural differences in international arbitration, such as the opportunity to travel and to work with very interesting people.” However, you can train people as long as you like, but it doesn’t necessarily give them judicial talents, such as how to behave and how to evaluate things. What are some key points that students interested in arbitration should know before they get into it? It is like litigation in the sense that it is a system of dispute resolution. Therefore, you could be dealing with a whole range of subject matters. You get the added advantage of cultural differences in international arbitration, such as the opportunity to travel and to work with very interesting people. And the cases are often more interesting than the ones that go to court!

One of the problems is finding experienced arbitrators. That is why the Charter is very busy in training people.

The Life and Times of Neil Kaplan Mr. Kaplan has lived an extrordinary life and continues to be a leading figure in the Hong Kong legal community. Here are some of his landmark achievements: • • • • • • • • •

Appointed Queen’s Counsel (1982) Appointed Justice of Peace for Hong Kong (1984) Founded Des Voeux Chambers (1984) Chairman of the Hong Kong Chartered Institute of Arbitrators (1984-89) Served as a judge in the High Court (1990-94) Chairman of the Hong Kong International Arbitration Center (1990-2004) President of the Chartered Institute of Arbitrators (19992000) Awarded CBE (Order of the British Empire) for services in arbitration (2001) Awarded Silver Bauhinia Star by Hong Kong Chief Executive for contribution to commercial arbitration (2007)

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ADR

Winter 2011

Arbitration?

In contract law, you may have come across arbitration as one of the ‘agreed mechanisms’ that can fix a missing essential term in a contract. Hopefully by the end of this article you will know more about arbitration and how to draft an arbitration agreement specific enough to be valid in Hong Kong. Arbitration is litigation and in many ways, an arbitrator’s function is the same as a judge. However when appearing in front of an arbitrator, be mindful of the fact that they often know the case better than a judge and will also typically be more experienced in the commercial area of the dispute. Why is this important to you? You might be thinking that arbitration isn’t relevant to you, but you ought to think twice. Indeed in the relatively small circle of arbitrators, one typically finds prominent figures such as eminent judges and barristers and very experienced commercial men. But as young lawyers, it is likely that you will deal with arbitration either when representing your client or in drafting an arbitration clause in a contract. It is therefore vital for all lawyers to know what an arbitration clause is, what

makes it valid, and when you need to rely on it. How to get involved in Arbitration? Most big firms now have a dedicated Dispute Resolution desk and will most certainly feature international arbitration as a key service. It is a growing sector, and it is big money. If you are interested in arbitration and want to learn more, take a look at the 100 Q&A questions posted on the website of the Hong Kong International Arbitration Centre (HKIAC). The HKIAC also offers an Internship Programme designed for students to learn more about arbitration and Alternative Dispute Resolution (ADR). If you’re really serious about a career in arbitration, you can even consider doing an LLM. Try to improve your decisionmaking skills as a law student and think practically. You can do this by reading more judgments or marshalling for a judge. But of course, as Mr Neil Kaplan puts it, the best way to see arbitration is to work for an arbitrator as his legal assistant. Such opportunities do not come easy so use every opportunity to expand your legal network. The

Vincent Chan

International Chamber of Commerce (ICC) organises a Young Arbitrators Forum that provides opportunities to network with other young professionals in the field.

Drafting an Arbitration Agreement Now here’s your first lesson! There are 3 elements that are expressly required: 1. A reference to arbitration “Any dispute in connection with this contract shall be submitted to arbitration.” 2. Specify the governing law “The seat of arbitration shall be Hong Kong and Hong Kong law applies.” The seat (or place) of arbitration determines the governing procedural law and may be different from the governing substantive law. 3. A mechanism to form the arbitral tribunal “The number of arbitrators shall be three. Each party shall appoint a single arbitrator and the two appointed arbitrators shall appoint a third arbitrator as the Chairman of the Tribunal.”


Careers

GLSA Gazette

來自大陸的同學

Bob Lin

如何成為香港律師

Non-qualifying law degree (LLB from PRC, USA) or non-law degree

Qualifying law degree from other jurisdictions (England, Canada)

Satisfaction of 11 core subjects and 3 top up requirements

Qualifying law degree from one of the three universities in HK (LLB, JD)

我們學院全日製LLM課程的同學大 部分來自大陸,而其中有些人可能 會留在香港工作。本文簡述了有內 地背景的LLM學生成為香港律師的 途徑,希望能給大家一些參考。 要成為香港的律師一般需要進修 PCLL(法律專業證書課程),繼 而可以通過兩年律師事務所實習成 為律師,或者通過一年的實習成 為大律師。而如何才能符合進修 PCLL的資格呢? 圖表1 實現PCLL入學基本要求的 路徑(本圖表僅供參考,並不對依 賴本圖表做出的任何行為負責) 最新的PCLL入學要求裡,並沒有 提及LLM。它接受香港三所高校的 LLB和JD,以及某些普通法國家 的LLB和JD,CPE(英國法律專 業共同試課程),並且通過一年兩 次的“轉換考試”,符合十一門“核心 課程”和三門“銜接課程”的申請者。 對於來自大陸在香港修LLM課程的 同學,也可以通過以上兩個途徑符 合PCLL的基本入學要求。 LLB的 時間和金錢成本比較大而且不太符 合我們的觀念,因此本文主要介紹 JD和CPE。 儘管JD被譯為“法律博士”,它本質 上是一個碩士課程,是為這些想從 事法律職業,或者想掌握更多領域 商業知識的職業人士設計的。這些

人有著不同的專業背景,但一般其 專業都不是法律。儘管如此,作為 不同法域的我們仍可以通過進修 JD,繼而申請PCLL。關於JD的基 本情況,下文以香港中文大學為例 稍作介紹。 全日制的JD課程為兩年,非全日 制的則為三年半,學費為二十八萬 八港幣。其入學要求是IELTS 7.5 或者TOEFL 100。2010-2011年 度,中大五百三十名JD裡,有301 名是全日制學生,229名為非全日 制學生,其中7%的人有大陸的學 士背景,6%的人在大學進修的是 法律或法律相關專業。在LLM課程 裡有修過JD必修課程的同學,可 以申請課程豁免,但一般不能申請 學分豁免,因為LLM的必要學分不 能成為JD的學分。 圖表2 2010-2011年度CUHK JD本 科學歷的地理及專業分佈。(圖表 來源於CUHK法律學院網站) 在英國,通過CPE,非法律專業 的人士也可以參加英國的司法考 試。同樣,我們也可以進修這套 課程,並參加“轉換”考試,從而 符合PCLL的入學基本要求。該套 課程有八門課,全日制課程為一 年,非全日制則兩年。香港大學 專業進修與繼續教育學院和英國 Manchester Metropolitan大學都 聯合在中環的HKU SPACE開辦了

HK Conversion Examination for PCLL Admission

PCLL (one year full-time or two years parttime)

CUHK JD Bachelor Degrees, By Geographic Origin United States, 25%

Hong Kong, 39%

Canada, 12%

UK, 11% Mainland China, 7% Australia and NZ, 5% Other parts of Asia, 1%

該課程。不過它只提供非全日制課 程,也就是說,我們在香港最快也 要兩年才能修完CPE。不過,在對 於要在香港工作的同學,可以邊工 作邊上課,同時,在這兩年內把其 他“核心課程”和“銜接課程”的“轉換 考試”都通過。這樣CPE畢業就可 以馬上申請PCLL。需要提醒大家 的是,因為CPE學的將是法學本科 的所有課程,因此課程並不輕鬆。 同時,CPE的成績也是申請PCLL 非常重要的因素。 CPE的學費為 六萬六港幣外加四百二十英鎊考試 費。 另外應該注意的是,PCLL對合格 申請者還有一個嚴格的篩選程序, 符合基本條件的人並不一定會被取 錄。如果你讀完了JD或者CPE, 但成績不理想,也同樣無法被 PCLL取錄。因此,對於來自大陸 在香港讀LLM的同學,要成為香港 的律師並不容易。

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14 Careers

Winter 2011

Alternative Legal Careers Charles Ladbrooke Maggie Lee

Law students are often encouraged

to think outside the box. In fact, many of us strive to come up with creative solutions to problems presented to us in the classroom. But what about the BIGGER problem we will face upon graduation? – I.e. the CAREER decision. After speaking with fellow JD classmates, it seems that many of us are unaware of career opportunities beyond those offered by international law firms. Perhaps it is now a good time to consider our options before the clock ticks too fast!

The Department of Justice There is no doubt that private practice

is a popular alternative among law students, but we must not overlook what the public sector has to offer. The DOJ is involved in a wide array of activities, central to Hong Kong’s legal system. Known as the largest law firm in Hong Kong, it is responsible for all prosecutions, drafting of all Government legislation, providing legal advice to Government bureaux and departments, as well as representing the Government before courts and tribunals. Lawyers in the DOJ work within one of five divisions: Civil Division, International Law Division, Law Drafting Division, Legal Policy Division and Prosecutions Division.

Legal Trainee Scheme (LTS) Every year, PCLL graduates are invited to apply to the LTS. Trainee Solicitors will join the LTS for a period of two years where 9 months will be spent in the Civil Division and 6 months in the Prosecutions Division. The scheme also provides an opportunity to work with a private law firm for 3 months and a specified government agency for 1 month. Trainee Barristers will join

the LTS for one year where 3 months will be spent in the Civil Division, 5 months in the Prosecutions Division, 3 months with a practising barrister and the remaining 1 month as a judge’s marshall. The LTS can be a great starting point for those who have a passion for public service or who wish to make a direct contribution to Hong Kong’s legal system. Additional information can be obtained on DOJ’s official website: http://www.doj.gov.hk Recruitment notice will be posted in around April/May on the Civil Service Bureau website: http://www.csb.gov.hk/

Mediation A movement towards Alternative Dispute Resolution (ADR) in Hong Kong has seen a growing need for mediators. A mediator typically plays the role of a facilitator who assists parties to come to a mutual agreement that is binding on the parties in contract.


Careers

GLSA Gazette Mediation is a popular route in contrast to expensive litigation. The Civil Justice Reforms (CJR) in Hong Kong and Practice Direction 31 on Mediation, as well as the recently established Financial Dispute Resolution Centre (FDRC) has guaranteed the growth of the mediation field. Mediation as a field is very broad and flexible. One can easily find a mediator through the Hong Kong Mediation Council. Disputes are generally separated into General and Family matters, which are managed by experienced panels at the Hong Kong International Arbitration Centre (HKIAC). To become a mediator you will need to become accredited in either general or family matters. It is also possible to obtain a dual accreditation. Recruitment is made through the HKIAC where, in order to qualify for practice, you must pass criteria for accreditation which includes a 40 hour training course, an assessment and being approved by a committee. For more information on this career visit: the HKIAC at http://www.hkiac.org

Boutique Law Firms Many JD graduates may not think too highly of boutique firms. But in reality, boutique law firms are growing in demand for their lower costs and custom-tailored services. Unlike major commercial law firms which engage in a wide range of services, boutique law firms specialize in a niche area of practice. Perhaps it is true that boutique firms cannot offer the big bucks as the large firms do, solicitors at boutique firms benefit from working in a more flexible and intimate environment. Senior partners are more easily accessible and junior associates can expect a higher level of autonomy and responsibility. Two examples of global boutique

law firms are Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP and Sandler, Travis & Rosenberg, P.A., which specialize in international trade and customs law. Gall is another boutique firm from Hong Kong that specializes in business litigation. As a note of advice, you should act now if you are interested in joining a boutique firm as boutique law firms often do not advertise vacancies through formal recruitment channels. You will need to break into the ‘hidden’ job market to look for opportunities. A great way to tap into the hidden job market is to conduct informational interviews with individuals who are in the industry. Leveraging your social network can be a great way to start identifying these individuals!

In-House Counsel Employed as the legal eyes and ears of large businesses and corporations, InHouse Counsel lawyers are important parts of a much larger business field. As a member of the In-House Counsel of a large corporation you will be expected to understand and articulate the needs of the company on a wide variety of legal issues unless you bring a certain specialization. Renowned in the legal world for having better working days and amenable hours, the benefits of an InHouse Counsel job make it a highly sought after option. Recruitment is

Student Poll Let us know which career path you’re planning on taking for a chance to win a $50 dollar coupon at Starbucks • Solicitor • Barrister • In-house Counsel • Boutique Law firms • Non-law • Arbitration • Mediation Send your choice to newsletter@cuhkglsa.org generally made through large companies. Banks and insurance firms are the biggest employers in Hong Kong such as AIA, UBS and Credit Suisse. Some companies offer in-house training, however the easiest way to get an In-House Counsel position is to make the jump after completing a Training Contract with a law firm. Getting on the In-House Legal Counsel path is not as clear as applying for a training contract. Be sure to look at a variety of different business areas, register for recruitment evenings and network at events. Contact the Hong Kong Corporate Counsel Association for more information visit: http://www.hkcca.net

Think Outside the Box

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16 Careers

Winter 2011

JD vs LLB

Flora Tsui

What Do Recruiters Think?

How

maturity when compared to LLB Although JD students’ previous work well does the JD program students. In addition, as JD students experience might have sharpened their hold up in comparison to the typically have an undergraduate degree current and commercial awareness, it traditional LLB? The consensus is that in a non-law related discipline; it does not necessarily give them an edge the JD is generally well regarded among often enables them to land a job in a law firm. A recruiter employers. A recruiter to transition into from another top-tier US international “...JD students are from one of the top-tier the fast-paced legal law firm observes “many LLB students local firms recognizes generally more environment in Hong have bridged their work experience CUHK’s JD program commercially aware Kong with ease. gap by doing internships”. Another as having a “solid than LLB students recruiter also finds LLB students reputation within the A solicitor from “more enthusiastic and will take more as they are “able to territory” and believes another top-tier US initiative to ask for work”. the quality of law handle the business international law firm students’ reflects well matters better...” shared with me his The LLB and JD programs are creating on CUHK’s efforts experience working more competition among students and investments in the law faculty. with both LLB and JD students. for placements in the legal industry. He recalls several JD students were Although some firms have expressed a Without a doubt, the legal content “particularly knowledgeable in Chinese trend in recruiting a higher percentage of the JD and LLB are very similar company law and financial law”. He of JD graduates in recent years, there in nature. However, the programs believes the electives in finance and is also an emerging trend of combining exhibit notable differences in many commercial law, some of which are LLB degrees with other disciplines to aspects that set them apart. The unavailable to LLB students, can allow retain students’ competitive edge in the students’ educational background and JD students to develop their specialties market. previous work experience are two key in law sooner. distinctions. This additional “...many barristers are Despite the growing knowledge acquired generally in favor of LLB recognition of the JD, When asked about the differences at university can students ... LLB students it is not likely that the between students, recruiters expressed translate well LLB programs will that JD students are generally more into practical tend to demonstrate be phased out in the commercially aware than LLB students an earlier and focused legal skills that foreseeable future. as they are “able to handle the business assist JD students interest in law...” First, there are still matters better”. In a way, JD students’ outperform in the many students who sensitive commercial awareness workplace. wish to pursue law at an undergraduate underlines their professionalism and level. Second, the cost of a legal education will be a lot higher and Weighing Your Chances thus less affordable should the JD be the only law program in place. Third, #Trainees of JD Trainees (in grey) The following statistics are Summer Interns many barristers are generally in favor of # of JD Summer Interns (in colour) gathered from students. LLB students over JD students while The information is by no Baker & McKenzie 4 recruiting pupils at their chambers. means official and should LLB students tend to demonstrate Clifford Chance 1 not be used for official an earlier and focused interest in law reference. The following Deacons 3 than JD students, which is imperative firms are chosen at Herbert Smith given the specialized nature of a 2 random to provide a brief counsel’s work. All in all, the JD and Hogan Lovells 4 6 overview of JD students’ LLB programs are sustaining a healthy placement in summer Mallesons 6 9 competition among students to enter vacation schemes in Orrick the legal industry, while also providing 4 8 2011. The figures more academic pathways to launch Skadden represent students from 3 7 legal careers in Hong Kong. all three law schools in Hong Kong.

Slaughter & May

0

Article continues on pg.17


GLSA Gazette Continues from pg.16 It may be tempting to suggest that JD students, with a diverse education and work experience profile, have an advantage over LLB students. In the end, employers recruit students based on individual merits and

“...JD students were particularly knowledgeable in Chinese company law and financial law...” accomplishments. Candidates who demonstrate intelligence, creativity, good work ethics and strong

Be Aware personalities will standout. These personal attributes do not necessarily correlate with education background. Law firms evaluate applicants based on the same selection criteria regardless of education background. In the end, individual merits are what matter the most after all.

Entering the Courtroom Hearing

a live court session can be a great learning experience. The timetable of court sessions, called the ‘cause list’ can be easily found at the Judiciary’s homepage. Useful information you can find in the cause list includes the number of allotted days and the current day of the hearing. You will find that most sessions are open to the public, with the exceptions of those relating to procedural matters and those that require privacy, such as matrimonial cases.

Paul Cheuk Law Centre. Sitting at the back of the courtroom, I found it hard to hear the counsel clearly. Headphones are available from the clerk at the CFA but at the lower courts, you will have to just sit near the front of the courtroom. The counsel representing the appellant was Mr Dennis Chang SC. The scene in front of me reminded me of a landmark right of abode case in 1999 where Mr Chang represented Ng Ka Ling. Bokhary PJ was also serving as a Permanent Judge in that court. And guess who represented the Director of Immigration at that time? Coincidently it was Mr Geoffrey Ma SC (as he was then) now sitting in front of me as the Chief Justice!

As you enter a court building, you might be surprised that, unlike entering the Legislative Council building, there are no registration or security checks, even in the Court of Final Appeal. In a sense this shows that our society has always paid great respect to the Judiciary. A civil trial starts with an opening submission by the plaintiff followed by presentation of evidence, which may include summoning and examination of witnesses. The defendant will have a chance to cross-examine any witnesses. After the plaintiff has submitted all his evidence, the defendant will repeat the same procedure. Towards the end, the defendant will give a final submission, and the trial will end when the plaintiff does the same. One morning, I anxiously arrived at the door of the CFA. The day’s hearing was about interpreting the preamble of an ordinance. The appellant was a student who complained about an alleged switch of language policy in 2006. It was suggested that the policy was contrary to the preamble of The

“The courtroom of the Court of Final Appeal was actually quite compact. In fact it is smaller than any of the lecture theatres at Graduate Law Centre.” Chinese University of Hong Kong Ordinance (Cap. 1109). The 5 presiding judges were Chief Justice Ma, Permanent Judges Bokhary, Chan, Ribeiro, and Non-Permanent Judge Nazareth. The courtroom of the Court of Final Appeal was actually quite compact. In fact it is smaller than any of the lecture theatres at Graduate

For those of you who have not yet taken the time to do so, the building of the CFA itself is worth visiting. French missionaries built its neo-classical style structure in 1917. The courtroom of the CFA, with its white dome readily recognizable, was originally a chapel. Many things are changing in the legal community and the CFA is expected to relocate to the ex-Legislative Council building soon so you should act fast if you haven’t yet. Bokhary PJ, a truly eminent figure in the legal community, will also be retiring next year. Watching him and the other CFA judges was a truly inspiring experience and I really recommend everyone to experience it.

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18 Be Aware

Winter 2011

Weighing In:

Margaret Wo

To the Health of Hong Kong’s Common Law

Earlier

this semester, members of the UK Supreme Court honoured our school with a visit. Lord Phillips, President of the UK Supreme Court delivered an address on “The Common Law Tradition Today.” Lords Hope (Deputy President) and Clarke (formerly Master of the Rolls) were also in attendance. Lord Phillips’ delivered a most eloquent speech and every word bespoke of his dedication and passion for this engrossing topic. In his closing remarks, he summarized his thoughts on the position of the common law today, “The Basic Law has preserved the common law in Hong Kong. I believe that the common law is alive and well in your jurisdiction.” But is the common law truly “alive and well” in the world’s most vertical city? Debate on this topic would first require examination of the HKSAR’s constitutional document, the Basic Law. In response to the above question, many would argue that it is – the HKSAR has its own constitutional document under the “one country, two systems” doctrine and except matters pertaining to foreign affairs and military involvement, the HKSAR possesses a

“high degree of autonomy.”

do.

We have judicial independence, although ultimate interpretation of the Basic Law lies with the NPCSC. We also have a high degree of legislative and executive autonomy. But is this

Hong Kong is autonomous and with the two exceptions mentioned above, self-governing according to the system derived from the British, and separate from the PRC’s civil law system. However, certain articles of the Basic Law, while affirming our status as common law (e.g. Articles 8, 18, & 84), can arguably be said to be under a significant degree of NPCSC influence. For example, the interpretation issued by the NPCSC after final judgement in the Ng Ka Ling case and its subsequent effects on the Lau Kung Yung case, marked an all-time low in the history of our judiciary’s strength.

“The Basic Law has preserved the common law in Hong Kong. I believe that the common law is alive and well in your jurisdiction.” sufficient? There are sceptics who feel that our constitutional document is more of a mini-constitution, some even going so far as to say the Basic Law is merely a statute of the People’s Republic of China. All this talk about the constitution – what does it have to do with the state of common law in Hong Kong? Everything. The constitution verbalises all that is relevant to the legal system of a jurisdiction. So according to the Basic Law, do we have a healthy common law system? Well, in the strictest and most technical sense, I suppose we probably

So was the Lord Phillips’ assessment of the health of common law traditions in the HKSAR accurate? Perhaps – after all, what I have written here is merely opinion, not statement of fact. Perhaps being an outsider briefly taking our pulse, Lord Phillips may not fully be able to diagnose all our symptoms. But coming from the point of view from inside this great body, it may be time for a long overdue check-up.


GLSA Gazette

OPINION

Issues raised in the recent Foreign Domestic Helpers’ case The recent decision in Vallejos Evangeline B. v. Commissioner of Registration and Another [2011] HKCFI 642 concerned the constitutionality of Section 2(4) of the Immigration ordinance and whether a Foreign Domestic Helper (FDH) has a right to obtain permanent residency status in Hong Kong. Lam J.’s decision sparked public outrage by lobbying groups in Hong Kong. This should not affect the Court in interpreting the Basic Law to reflect its true intent and not adhere to any social policies set out by the Government. The judiciary is and should always remain independent in this regard. Lam J. states it beautifully in his judgment: “The independence of the Judiciary is fundamental to the confidence in our administration of justice. Therefore, it is important for the general public to understand that this judgment is concerned exclusively with the legal merits of the Applicant’s arguments. It is not a judgment on whether as a matter of social policy FDHs should be given the right of abode. Nor does this

“...it is important for the general public to understand that this judgment is concerned exclusively with the legal merits of the Applicant’s arguments...” court have any power to rewrite Article 24(2)(4).” Counsel for the government suggested that it is necessary to bring in extrinsic materials to understand the legislative intent. However, extrinsic materials, even if admitted on appeal, are not likely to affect the interpretation of the Basic Law. As the Former Chief Justice Li has said in Director of Immigration v Chong Fung Yuen [2001] 2 HKLRD 533: “The meaning of the language is clear if it is free from ambiguity, that is, it is not reasonably capable of sustaining competing alternative interpretations.” In my opinion Article 24(4) is clear and unambiguous.

Opinion

Jenny Poon

Another question the court will likely have to deal with on appeal is whether Basic Law Article 24(4) should supersede Article 154(2). I am of the opinion that Article 154(2) works with Article 24(4) rather than to contradict it. The government’s power to use immigration controls on foreign persons should not be used to restrict the immigration status of any FDH who satisfies the criteria outlined in Article 24 as permanent residents. Otherwise, the fundamental rights of Hong Kong permanent residents under Article 24 will be severely undermined. It has been suggested that allowing FDHs the right to permanent residency in Hong Kong will create a sudden influx of people into Hong Kong putting unbearable stress on the social welfare system. Hong Kong citizens have voiced their fear that FDHs might increase job competition for the locals. Despite the potential consequences, it is my opinion that the government is unlikely to win even at the appeal level. Following this line of reasoning, I support Lam J.’s judgment that FDHs should be given the right to apply for permanent residency as provided for under the Basic Law of Hong Kong.

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GLSA Gazette Winter 2011  

The gazette of the Chinese University of Hong Kong Gradaute Law Students Assocation - Hong Kong's largest law student organization

GLSA Gazette Winter 2011  

The gazette of the Chinese University of Hong Kong Gradaute Law Students Assocation - Hong Kong's largest law student organization

Profile for cuhkglsa
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