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PCLL Conversion Examination

29th June 2009

Examiner’s Comments

Hong Kong Legal System

The examination consisted of three questions two of which were compulsory. The

three questions addressed: access to, and quality of, legal services in Hong Kong,

precedent and the impact of the change of sovereignty on the Hong Kong legal

system. The examination was held over two hours and written on a closed book basis.

As with past exams, the examiners prepared a list of factors in advance of the

examination that were relevant to answering each question. Thus, to answer the

questions successfully, candidates needed to address a majority of those factors and to

do so in a structured and relevant manner. Candidates should have also been able toexpress themselves in a clear and succinct manner. In order to answer the questions

satisfactorily, candidates needed to have been able to cite relevant sources of law

and/or major commentators in each area.

The overall standard was variable but there were a number of very good papers

amongst the scripts. However, the majority of the papers seemed to be average at best

and quite a high number of papers were not passable. As before, there were various

reasons for the failure or poor grades given to some papers: lack of familiarity with

the relevant authorities and commentaries, failure to analyse as well as describe,

failure to address the question adequately either by directing material to answer the

specific question or by responding to only one part of the question, and an inadequate

standard of written English necessary to clearly communicate a response to the

question. Again, as before, some students preferred to answer questions that they may

have prepared for and which they anticipated would be on the exam but which were

not. Furthermore, students preferred to respond to the first and third questions which

were broader in scope and did not require a more in-depth knowledge of a recent CFA

decision concerning precedent in Hong Kong.

In some instances, time management again appeared to be a problem for candidates,

with some giving overly long responses to one question leaving themselves barely

any time to address the second question.

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With regard to the specific questions:

1. 

What reforms, if any, should be implemented in order to improve both the

quality of the services the legal professions offer and public access to those

services?

Candidates generally did well if they answered both aspects of the question, referring

to both quality of legal services and access to those services. A considerable number

of candidates dealt only with one aspect of the question. Candidates also tended to

address this either through the lens of legal aid provision only or as a question about

fusion or reform of the professions. Both aspects should ideally have been discussed.

Often the information given about the proposals for reform of the professions and

legal aid provision was too superficial and lacked the necessary detail to support in-

depth analysis of the issues.

2. 

 Explain the decision of the Court of Final Appeal in Solicitor v Law Society of

 Hong Kong [2008] 2 HKLRD 576 and critically evaluate the likely impact of

that decision on the development of binding precedent in Hong Kong.

In order to answer this question well, candidates needed to have read and thought

about the case in question. As a landmark decision of the CFA concerning both the

development of stare decisis in Hong Kong and the significance of pre-1997 Privy

Council decisions, this case is of great significance. Few candidates addressed the

case in sufficient detail and either did not set out the relevant facts and issues or did

not explain the legal principles discussed in the judgments. However, candidates

could especially have improved their performance if they had taken their knowledge

of the decision and then contrasted it (specifically the move away from the Young v

 Bristol Aeroplane test to the ‘plainly wrong’ test) to the previous system of stare

decisis and considered the changes that the CFA decision might provoke and their

desirability.

3. Assess the extent and nature of the impact of the change of sovereignty in 1997

on the Hong Kong legal system and the sources of Hong Kong law.

This question allowed candidates a fairly broad canvas on which to demonstrate their

knowledge of the laws and legal system of Hong Kong. However, a significant

number of candidates answered the question by referring only to the right of abode

cases and the impact of that litigation on the rule of law and separation of powers in

Hong Kong. Very few candidates referred to the sources of law, though good

candidates did develop the theme of the extension of sources of law through the

constitution, the Basic Law and the right or interpretation specifically. Very few

candidates considered the impact on the institutions of the legal system: courts,

 judiciary etc. As in other questions, a number of candidates adopted a descriptiveapproach when a more analytical approach, directing their knowledge to answer the

specific question set, would have resulted in a better grade.

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