Law and Legal Studies 2015 by Education Post

Law and Legal Studies 2015 - Study trips and internships open new windows on law careers - Top-tier law degrees put graduates in the employment spotlight - Revealing informantsâ&#x20AC;&#x2122; identity becomes issue of legal debate

www.educationpost.com.hk/lls-Apr15

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University of London Bachelor of Laws at HKU SPACE

Address

Stewart House, University of London, 32 Russell Square, London WC1B 5DN

Contact Persons

Head of Student Advice Centre

Tel

44 (0) 20 7862 8360

enquiries.londoninternational. ac.uk

Students can study at home, on the move, and at a College in Hong Kong.

Website

www.londoninternational. ac.uk/hk-llb

HKU SPACE runs LLB preparation classes at Hong Kong University Main Campus and Centennial Campus, Pokfulam Road, Hong Kong. The next intake is August 2015.

Level

Bachelor

Delivery Mode

Part Time Online/ Distance Learning Short/ Block Courses

Duration

2-8 years

Language of Instruction

English

Class Size

varies

Course Fee

From approx £3500 to £4100 for the whole degree depending upon the length of time taken to complete plus fees for local classes

Prerequisite

Standard entry route: 2 Category A subjects at level 3 or above and 3 further Category A subjects at Level 2 or above in the HKDSE; or an Associate degree, Advanced Diploma or Higher Certificate; Graduate Entry route: A bachelors degree in any subject

Course Name Bachelor of Laws Operated By

Granted By

HKU SPACE and directly by University of London International Programmes University of London

Course Profile

Six Colleges of the University of London work together as a consortium to lead the undergraduate laws programme. These are: Birkbeck, King’s College London LSE (London School of Economics and Political Science) Queen Mary University of London, SOAS (School of Oriental and African Studies) UCL (University College London). According to the UK Complete University Guide, the laws schools of LSE, UCL, Kings and Queen Mary are in the top 10 in the UK for studying Law. A University of London LLB is a prestigious qualification. We guard the quality of our degrees and this means that students and their employers can rely on the integrity of the qualification and can be confident about the standard of achievement that it represents.

CONTENTS Cover story

Study trips and internships open new windows on law careers JOHN CREMER

Course

CUHK broadens study path with wider choice of electives WILSON LAU

Special Report

A top-tier law degree that puts graduates in the employment spotlight

Legal eagles qualify for courtroom success CHRIS DAVIS

CHRIS DAVIS

Discussion

Hong Kong’s top judge ‘keen to raise status of solicitors’ STUART LAU

Industry

Rise in litigation funding lures overseas legal experts to Hong Kong THOMAS CHAN

Insight

Letter of the Law: Revealing informants’ identity becomes issue of legal debate ANDREW RAFFELL

Cover story

Study trips and internships open new windows on law careers Text: John Cremer Photo: iStockphoto

Students embarking on a bachelor of laws (LLB) degree in Hong Kong are expected to do far more than simply learn the principles and practices underpinning the territory’s own legal system. Besides taking the common core courses, made compulsory as part of the four-year undergraduate curriculum and designed to give a more rounded education, they also have many new opportunities for study trips to mainland China and international exchanges further afield. Sensibly enough, the aim is to provide a real understanding of how things work elsewhere – and why. But, along with the academic aspects and insights into how legal theory applies in real-life situations, such experiences are also transformative in other ways. Simply being in a different environment teaches students to consider different viewpoints and alternative approaches, as well as to stand on their own two feet. And those are important steps on the long path to becoming a professional lawyer with the poise, bearing and self-confidence to argue complex cases and represent fee-paying clients.

WE NOW HAVE EXCHANGE AGREEMENTS WITH SOME 50 TOP UNIVERSITIES AROUND THE WORLD

“We now have exchange agreements with some 50 top universities in many parts of the world, notably Britain, Canada, Australia and the United States,” says Rebecca Lee, associate professor and LLB programme director at the University of Hong Kong’s (HKU) faculty of law. “Currently, about 50 per cent of our students spend one academic year, or one semester, on an overseas exchange. These opportunities offer them exposure to a foreign jurisdiction and, as result, help in recruiting the very best students into our programme.” To broaden the curriculum in other ways, efforts have also been made to strengthen the teaching of legal research and writing skills, and to provide more non-law electives. The latter initiative helps students see the study of law in a wider context of modern society, which is obviously important as they progress towards fulltime careers. Law and Legal Studies

Cover story

MBA COURSES ON FINANCIAL MARKETS MUST INCLUDE CONSIDERATION OF THE SIGNIFICANT LOSS IN LIQUIDITY OF CERTAIN INSTRUMENTS SUCH AS BONDS

Understandably, there is also increasing emphasis on aspects of mainland Chinese law. The LLB curriculum includes a range of relevant electives taught in either English or Putonghua. In addition, the faculty has been making arrangements for “introduction to Chinese law”, which is a pilot project by top-rank law schools such as East China University of Politics and Law, Fudan University and Shanghai Jiaotong University, to be run on a voluntary basis. Students will have the option of taking this course either in these mainland law schools or at HKU. All being well, this will start as a pilot project with partners in Shanghai during the next academic year. The reasoning is that such a move would give students a more thorough overview of the Chinese legal system and make it possible to combine academic teaching with a certain amount of on-theground “empirical investigation” of institutions and procedures. “The faculty co-organises a summer internship programme in China, where students attend intensive classes, make visits to courts and government bodies in Beijing, and can [spend time] at the

People’s Courts in Shanghai, Nanjing and Hangzhou,” Lee says. “To give another kind of experiential learning, we also established a programme in Hong Kong in 2012 offering free legal services to the community. It places students in real-life situations where they hone their interpersonal, intellectual and problem-solving skills under the close supervision of mentors who are also qualified practitioners.” Up to January this year, this legal clinic had handled close to 600 cases. At the highly regarded School of Law at City University (CityU), similar stress is put on the value of early immersion in the practical side of a legal education – and on familiarity with how things happen in China. “Undergraduates are expected to participate in mooting and they have every chance to do legal placements and help with editorial work for a law journal,” says Dr Rebecca Ong, LLB programme leader at CityU. “These activities allow them to develop appropriate skills, which can be applied in real-world surroundings, and get them grappling with topical issues and challenges.” Ong adds that there are plans afoot for certain changes and enhancements. One of these centres on fostering even stronger links with the profession, with a view to creating more internship opportunities and clearer career options. Another is to work on establishing and promoting more meaningful student exchanges with reputable institutions around the world. “We firmly believe that internships are vital for law students as they provide a taste of what it is like working for a firm of solicitors, the legal department of a big company, for an NGO, or in a courtroom,” Ong says. “And besides taking the core course on the legal system in China, LLB students have the opportunity to participate in a mainland placement programme during the summer.”

INTERNSHIPS ARE VITAL FOR LAW STUDENTS AS THEY PROVIDE A TASTE OF WHAT IT IS LIKE WORKING FOR A FIRM OF SOLICITORS

Law and Legal Studies

Course

To help its students cultivate more diverse perspectives, the faculty of law at Chinese University (CUHK) has introduced a broad range of new elective courses for both its undergraduate and postgraduate programmes. The new electives include: free trade areas and customs unions: law and policy; energy law; international and comparative energy law; law and ethics of ageing: global perspectives; global issues in law; Chinese employment law; tax policy; information and privacy law; cultural heritage law; and the clinic for public interest advocacy. Dean of the faculty, Professor Christopher Gane, believes the launch of the new electives represents an important development in the programmes and reflects the faculty’s strongly “international” profile. “These new courses offer new perspectives for our students. Many of them are of great practical importance for Hong

CUHK broadens study path for legal eagles with wider choice of electives Text: WILSON LAU Photo: May Tse

ALL STUDENTS STUDYING FOR THE LLB HAVE ONE FURTHER YEAR TO PURSUE THE ELECTIVE SUBJECTS THEY LIKE

Kong, while at the same time addressing issues that are of global significance,” he says. The significant increase in new electives is part of the outcome of a full review of the bachelor of laws programme. Through the review, the faculty has aimed to give greater clarity to the programme’s structure and to emphasise the logical development of legal studies. “The review has ensured that all courses that were properly regarded as ‘foundational’ – those seen as essential to any qualification in law – are grouped together in the first two years of the LLB programme. This means that all law subjects regarded as prerequisites for graduation will be available to students in the first two years of studies,” Gane says. As such, the third and fourth years of study consist entirely of elective subjects. “Of course, many – probably most – students would take the remaining subjects necessary for admission to the PCLL

Law and Legal Studies

Course

programme,” Gane notes. “But even then, all students studying for the LLB have one further year to pursue subjects they have selected from the extensive range of electives available.” The review has also made it easier for LLB students to take advantage of the huge range of opportunities CUHK offers for study abroad – whether at university or faculty level, or via exchange programmes arranged by the university’s constituent colleges. At present, LLB students have more than 2,000 potential destinations for study abroad if they wish to broaden their experience this way. “This review has also allowed the faculty to identify a number of specialist ‘streams’ students may pursue by an appropriate choice of electives. So, for example, students may choose to develop a ‘specialism’ in Chinese law or global law, thus enhancing their qualifications by evidencing their experience in these areas,” Gane adds.

STUDENTS MAY CHOOSE TO DEVELOP A “SPECIALISM” IN CHINESE LAW OR GLOBAL LAW, THUS ENHANCING THEIR QUALIFICATIONS

In another development, the faculty has established the new office of career planning and professionalism, appointing Paul Mitchard, QC, as director. Mitchard has more than 35 years’ experience in private practice under his belt. “The office has been established to enhance the range of services offered by the faculty to support students in their choice of career, and to assist them in preparation for the transition from study to the world of work, particularly in the legal professions,” Gane says.

Paul Mitchard

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University of London Bachelor of Laws at PolyUSPEED

Address

Stewart House, University of London, 32 Russell Square, London WC1B 5DN

Contact Persons

Head of Student Advice Centre

Tel

44 (0) 20 7862 8360

enquiries.londoninternational. ac.uk

Website

www.londoninternational. ac.uk/hk-llb

School of Professional Education and Executive Development (SPEED) offers six intakes a year and runs classes at the PolyU Main Campus, PolyU Hung Hom Bay Campus or PolyU West Kowloon Campus

Level

Bachelor

Delivery Mode

Part Time Online/ Distance Learning Short/ Block Courses

Course Profile

Duration

2-8 years

Language of Instruction

English

Class Size

varies

Course Fee

From approx £3500 to £4100 for the whole degree depending upon the length of time taken to complete plus fees for local classes

Prerequisite

Course Name Bachelor of Laws Operated By

Granted By

PolyUSPEED and directly by University of London International Programmes University of London

Students can study at home, on the move, and at a College in Hong Kong, which offer preparation classes for the LLB.

Special Report

A top-tier law degree that puts graduates in the employment spotlightt Text: Chris Davis

Established for over 100 years, and credited as the law degree which has provided the first step on a career path for many thousands of practising lawyers worldwide, the University of London Bachelor of Laws (LLB) is widely recognised for setting the “gold standard” in legal education. The University of London LLB programme has been offered in Hong Kong by the University of Hong Kong, School of Professional and Continuing Education (HKU SPACE) since 1964, when it was the only English Common law degree available in Hong Kong. “The University of London LLB programme is well-regarded by both students and employers,” says Edith Browne, director, LLB preparation programme at HKU SPACE. In particular, Browne says, in addition to legal knowledge, employers value transferable skills such as analysis, critical thinking and problem-solving. “Completing this qualification demonstrates a high level of commitment on the part of students,” says Browne. While Hollywood films and TV shows such as Ally McBeal and Law and Order make the legal world look glamorous and easy, in reality earning a law degree and becoming a legal professional requires dedication and focus. “The University of London LLB is known to be a robust qualification, the acquisition of which is a testament to the calibre and determination of its graduates,” Browne says. At a time when degree providers are burgeoning, Browne says the integrity of the University of London LLB qualification has been maintained because students are marked to the same high standard as those studying at one of the University of London Colleges in the UK. Furthermore, to ensure the quality of the programme remains of the highest standard, subject guides which provide the learning content are specially written by legal experts. Upon graduation, Browne says, LLB degree holders join a distinguished group of solicitors, barristers and judges around the world who began their careers by obtaining their law degree through the Uni-

versity of London International Programmes. However, she adds, becoming a legal practitioner is not the only reason for studying for a legal qualification. For example, LLB graduates can also pursue a career in the commercial or financial sectors, where legal qualifications are highly valued. “The programme is useful for those working in professions where legal and regulatory elements are part of the job, which is increasingly the case,” says Browne.

Edith Browne

To ensure access to the programme is flexible, a range of entry points include fast-track routes for those who already have an undergraduate degree. Qualifications that meet the entry requirements include two Category A subjects at Level Three or above, and three further Category A subjects at Level Two or above in the Hong Kong Diploma of Secondary Education (HKDSE), and associate degrees, advanced diplomas, higher certificates and higher diplomas which are accredited by the Hong Kong Council for Accreditation of Academic and Vocational Qualifications. For non-degree holders, the programme is offered in its traditional format, with students required to complete 12 courses, eight of them compulsory. To assist potential students, HKU SPACE provides a one-stop application and registration service for admission for the convenience of all Hong Kong applicants. To support students, classes are held in the evenings, at weekends and public holidays at the HKU campus in Pok Fu Lam. “Classes are scheduled so they meet the needs of working professionals,” says Browne, pointing out that the opening of the MTR Island Line extension makes travel to the campus quicker and easier. Teaching includes lectures, seminars, revision sessions, mock examinations and tutorials. In addition, students have access to a “Virtual Learning Environment” which is home to the online study materials provided by the university and includes subject guides, computer-marked assessments, past exam papers, recordings of course content and access to the online library which contains relevant cases, statutes and journal articles. Browne explains that depending on how many subjects they are studying, in addition to attending classes, students need to be prepared to set aside about 20 hours a week for further study. “As working professionals, most of our students have developed time management skills in their job which can be applied to their legal studies,” she says, adding that many students find it helpful to form study groups.

Law and Legal Studies

14 14

Special Report

Legal eagles qualify for courtroom success Text: Chris Davis

When Daniel Hui, barrister-at-law, a Centre for Effective Dispute Resolution (CEDR) mediator, and a former British Royal Air Force pilot, decided to switch careers, he had no hesitation in choosing the University of London LLB programme, widely recognised for its international standing, and which he was able to study while living in Hong Kong. “Once I made the decision to pursue a legal career, the University of London LLB was a logical choice,” says Hui, who on completing his LLB, studied at the University of Hong Kong (HKU) for his Postgraduate Certificate in Laws and trained at the Middle Temple Society in Hong Kong. “I am not in the habit of taking short cuts,” stresses Hui, who adds that high standards, upheld over 157 years, have earned the University of London LLB an international “gold standard” reputation. In addition to the University of London style of teaching, Hui says the examination results are also highly regarded internationally. Once he entered legal practice, Hui says the courses he has found particularly useful include Common Law Reasoning and Institutions, Contract, Criminal, Public Law, and the hinterland between them. “These areas are usually the backbone of my cases,” explains Hui, who has been interested in law since he was a child. While Hui is following in the footsteps of a long list of distinguished lawyers, solicitors, and barristers who began their career in the legal profession as University of London LLB graduates, few have inspired his career more than his maternal grandfather. “I listened to stories about my maternal grandfather and how he went to England to study in 1906 at the age of 13, returning to Hong Kong nine years later to start up his law firm, having passed his solicitors’ final exam and gaining First Class Honours,” recalls Hui, who also has uncles who practised as Queen’s Counsels and became judges. These days, Hui says, he is grateful to be chosen by Queen’s Counsels and Senior Counsels for a wide variety of work including civil, criminal, and public law. He also appreciates the support and encour-

agement he received from friends and family in backing his change of career, while at the same time acknowledging the strong foundation in legal knowledge and skills he gained from his University of London LLB programme. “I am all for giving credit where credit is due, which in this case is the University of London,’’ says Hui.

Debbie Yip

Reputation, quality and high academic standards are among the main reasons that Debbie Yip, a product manager with a global health care company, chose the University of London LLB offered through HKU SPACE (School of Professional and Continuing Education). “The lecturers are highly qualified and leaders in their area of specialisation,’’ says Yip, who previously gained an MPhil from the faculty of medicine and a bachelor’s from HKU. “I did quite a bit of research and spoke to friends who have completed the degree course and who highly recommended HKU SPACE and the University of London LLB programme,” says Yip, who graduated in 2013. Coming from a scientific background, Yip says there are definite advantages to having completed an LLB qualification. “Although my work is not directly linked to the legal profession, I find that the LLB has put me in a better position by adding depth and dimension to my decision-making,” she says. A prime example, says Yip, is the way she incorporates analytical and critical thinking processes into practical work applications. Since she completed the degree programme, Yip adds that she now uses similar principles in her daily life. Furthermore, Yip says studying and revising for her LLB degree has also strengthened her listening, oral and written communication skills. Importantly, she adds, support provided by HKU SPACE and lecturers, who were always ready to answer questions, helped make the learning experience engaging and fruitful.

Daniel Hui

Another useful skill Yip enhanced was her ability to manage time efficiently. While she was studying for her LLB, she changed employers, moved into a new professional role and even arranged her own wedding, in addition to travelling for business. “The degree programme more than satisfied my curiosity to learn something new and provides a good foundation for other areas I am interested in such as mediation and dispute resolution,” says Yip. Students can also attend classes in Hong Kong for the University of London LLB at PolyUSPEED.

Law and Legal Inside Studies MBA

Out of class

Let us bring the world to you

Study for a University of London laws degree in Hong Kong by part-time study The University of London is renowned for its teaching and research in laws. Colleges of the University such as UCL, Kings and LSE are ranked in the top 16 in the world for law. A prestigious University of London LLB enhances your career, from improving your promotion prospects, giving you career-relevant legal knowledge, or enabling you to switch into the legal profession. Optional part-time classes are available at HKUSPACE or PolyU SPEED. www.londoninternational.ac.uk/hk-llb

Join the World Class: studied anywhere, valued everywhere.

www.londoninternational.ac.uk/hk-llb

In Hong Kong’s competitive job market you need to make sure you have the skills not just for your current job, but also for the future. You need to be active in identifying the changing skill needs within your profession. “Increasing numbers of jobs now have some legal or regulatory element and people find the skills and knowledge gained on the University of London LLB useful in carrying out their roles,” says Edie Browne, Programme Director, University of London LLB Preparation course at HKUSPACE.

He says: “We are trained to write logically and clearly, and this sharpens my mind, strengthens my understanding and is deepening my experience across the full range of knowledge in the marketing field.” You do not have to give up your job to study. If you enrol with the University of London in Hong Kong you can study independently by distance learning or take classes part time and fit them within your schedule.

Changing career direction

Jason Fu Jason Fu, who is studying for the LLB and works in marketing for Ageas Insurance Company (Asia) Limited explains: “I have dealt with quite a lot of contracts relating to business opportunities with possible business partners and, looking at the terms of the contract, I can now easily spot the issues and concerns relating to contractual terms. It is easier now to advise the management of the possible risks and points-to-note in the contract.” Furthermore, Jason says that the LLB has given him “the skills to deal with complex issues creatively, systematically, critically, and analytically.”

If you have decided that you want to change direction completely, it will be important to consider how you can fill any skills or qualification gaps, around your existing commitments. University of London alumnus May Ling Wong, who now works as a corporate lawyer at Reed Smith Richards Butler, the Hong Kong office of US law firm Reed Smith, reveals: “It was a huge decision to change my career completely from medical research to law, and there’s no way I would have been able to do that without the flexibility and options offered by the University of London which allowed me to study in my own time and at my own pace.” Retraining to be a lawyer will not be for everyone. Gaining a place on the Postgraduate Certificate in Laws (PCLL) course is a prerequisite to becoming a qualified lawyer and competition for places is stiff.

Whatever your career goal, graduates from the University of London LLB remain among the most employable internationally. Simon Askey, Director of the University of London Undergraduate Laws Programme, says: “The intellectual rigor of the programme develops a high level of critical thinking, problem-solving abilities and self-motivation, skills which are highly sought after, whatever your career ambitions.”

There are 2,296 people studying for a University of London undergraduate laws qualification in Hong Kong. You can study independently or attend classes at either HKUSPACE or PolyU SPEED There is a fast-track, two-year route to the LLB for those who already have a Bachelors. The University of London LLB is an exempted course under the Non-local Higher and Professional Education (Regulation) Ordinance. It is a matter of discretion for individual employers to recognise any qualification to which these courses may lead.

Find out more at www.londoninternational.ac.uk/hk-llb

Discussion

Hong Kong’s top judge ‘keen to raise status of solicitors’ Text: Stuart Lau

Photo: Sam Tsang

Geoffrey Ma wants all seasoned lawyers to be in the running for title of senior counsel, not just barristers, says Law Society chief

Seasoned solicitors may be a step closer to being honoured as “senior counsel”, the status now reserved for barristers that the top judge is said to be favourably disposed to extending to qualified advocates. Law Society president Stephen Hung Wan-shun, who represents the city’s solicitors, told the Post that Chief Justice Geoffrey Ma Tao-li appeared keen to follow up his proposal. He said Ma had exchanged views on the matter with him personally and had promised to gauge sentiments in the Bar Association, the professional body of barristers. At the opening ceremony of the legal year in January, Hung called for solicitors to be honoured the way barristers were. “I do not have the expertise nor the standing yet to become a senior counsel,” he said. “But a lot of our senior members have already

had more than enough experience to become one. It will be a positive development if these senior members of the … profession could be given the recognition they deserve.” In a subsequent reply to Post inquiries, Hung said: “I hope the change could be delivered as soon as possible. This could allow fairer treatment of solicitors.” He said the recognition was all the more necessary as, since 2013, solicitors had been allowed to argue cases in all levels of courts if they passed requirements defined by the Higher Rights Assessment Board and were deemed to “possess the necessary professional competence”. The right indirectly gives litigants a choice to save costs by not hiring a barrister in addition to a solicitor and therefore has the potential to make access to justice more affordable. In Hong Kong, the title senior counsel, SC, is awarded to a limited number of senior barristers as a mark of outstanding ability. Among Hong Kong’s 8,000 solicitors, 28 now enjoy the right to speak on behalf of clients in the High Court and Court of Final Appeal, the board’s statistics show. That is why Hung suggests the time is ripe to give solicitors the proper recognition through the title of SC. Eric Cheung Tat-ming, a principal law lecturer at the University of Hong Kong who obtained higher rights last year, said he supported Hung’s call.

I HOPE THE CHANGE COULD BE DELIVER AS SOON AS POSSIBLE. THIS COULD ALLOW FAIRER TREATMENT OF SOLICITORS

Barrister Alan Leong Kah-kit, SC, a former chairman of the association, agreed that distinguished solicitor-advocates should be honoured like in Britain, although he raised worries about possible confusion if both branches of lawyers shared the term “senior counsel”. The association has yet to comment on its stance. At the Department of Justice, a spokesman said: “The department is still considering the matter - especially from the public interest perspective - and has not come to any concluded view.” This article appeared in the South China Morning Post print edition as Top judge ‘keen to lift status of solicitors’.

Law and Legal Studies

Industry

Overseas experts in litigation funding have joined the city’s growing number of legal firms who specialise in covering people’s legal costs in exchange for a cut of any settlement. IMF Bentham, which is listed in Australia, recently entered the market after several court rulings suggested an increasing recognition of the legitimacy of such funding. The company’s chief executive, Clive Bowman, said they were funding their first two cases in Hong Kong after carrying out similar work for years in Australia and the United States. “We choose Hong Kong because it has an open, honest and English-speaking legal system,” Bowman said. Litigation funding is a mechanism which allows people to have their legal costs covered, sometimes in the form of cash advanc-

Rise in litigation funding lures overseas legal experts to Hong Kong Text: Thomas Chan Photo: Reuters

Courts are now taking a more liberal approach to companies providing financial help to litigants in exchange for a slice of any settlement

es. If the litigant is successful, the money is repaid as a percentage of the settlement. If the case is unsuccessful, the funder bears the costs. In Hong Kong, funding litigation by a third party with a view to profit could potentially constitute a crime known as champerty. However, in recent years Hong Kong courts have adopted a more liberal approach towards the practice. In 2010, a court for the first time explicitly confirmed the legality of a litigation funding arrangement which involved the assignment of an insolvent companyâ&#x20AC;&#x2122;s right of action to a third party. â&#x20AC;&#x153;Insolvency is an exemption,â&#x20AC;? said Bowman, a former lawyer. He said that litigation funding promoted access to justice by allowing cash-strapped liquidators to seek redress, but liquidators had Law and Legal Studies

Industry

to seek court approval before entering into a funding agreement. “If a liquidator does not have any money to pursue the case, then creditors will not receive any returns. The chance of recovery is lost,” he added. Bowman elaborated that funding would enable liquidators to recover assets of insolvent companies and allow creditors to get returns from the claims. He said the company would only accept claims that had a good prospect of success and in which defendants had the ability to pay. IMF Bentham has funded 160 cases so far. It is now funding 30 cases in Australia, the US, Britain and Hong Kong. Speaking about the future development of litigation funding in Hong Kong, Bowman said he expected the market would not be as big as in Australia and the US – where class actions are allowed. “Having said that, there is a solid insolvency market in Hong Kong,” he added. In Hong Kong, the Law Reform Commission has proposed a form of class action to allow greater access to justice. The Department of Justice has established a working group involving various agencies to consider the proposal, but no decision has been made yet on whether to adopt it. “If your individual claim is not big enough, it would not be worth pursuing because the cost of pursuing is more than the claim size,” Bowman said. “To collectively get together and seek redress, class action is a way to enable access to justice. “If you permit litigation funding in conjunction with class action, then you are maximising potential for access to justice.” This article appeared in the South China Morning Post print edition as Litigation funding lures overseas legal experts.

THERE IS A SOLID INSOLVENCY MARKET IN HONG KONG

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Insight

Letter of the Law: Revealing informantsâ&#x20AC;&#x2122; identity becomes issue of legal debate Text: Andrew Raffell Photo: CFA

The Court of Appeal ruled that a complete prohibition would be contrary to the Basic Law. What is the legal position of a person who witnesses a crime or informs the authorities about a crime that has been committed or is imminent?

The answers may surprise many people who, acting in the understandable belief that it is their duty to do the right thing, might find themselves in an unenviable situation. The law does protect such people to a certain extent, but it also imposes duties on them, to a certain extent. Take the simple case of someone who is an eyewitness and/or a victim of a crime and goes to the police to make a complaint and/ or give a witness statement. If the prosecution decides that person can give useful and admissible evidence to assist its case in court, it can obtain a witness summons from the relevant court to force the person to attend court and give that testimony. Once the court summons has been issued, the witness becomes what is known in law as “compellable”. This is to be construed literally. The court can compel the witness to testify and can order punishment for failure to comply. A witness who fails to “come up to proof”, that is, give evidence according to the witness statement that has been made to the police or Independent Commission Against Corruption, can be treated as “hostile”. Certain consequences flow from that. In extreme and rare cases in Hong Kong, such recalcitrant witnesses have been imprisoned. Nearly all witnesses give evidence in open court, with their identities known to the defendants and others. In circumstances that are again rare, a witness’ identity may be kept confidential, known only to the prosecution and the court. In even more unusual situations, a witness may receive protection under a witness protection programme. Where this applies, it is a criminal offence to disclose the witness’ identity. Not everyone who comes forward does so openly and becomes a witness. Sometimes, the authorities get confidential information from regular or ad hoc informants. There is an old rule saying the identities of informants are to be protected. There are good policy reasons for this. Informers are far more likely to come forward if they are confident of being guaranteed anonymity.

Insight

But this has never been an absolute prohibition. In a 19th-century case, Marks v Beyfus, a court in England made it clear that disclosure could be ordered if there was a real risk of anonymity leading to the conviction of an innocent person. The reason for this is that it has been long recognised that some informants are themselves more deeply involved in criminality than some of the people they are telling on, to the point of being involved with or even organising the very crime they have offered information about. The unfortunate history of informants and the authorities during the long troubles arising out of Northern Ireland’s politics has led to some degree of statutory regulation of informants in Britain. Hong Kong does not have such regulations. In a recent dangerous drugs case involving an application to disclose an informant’s identity, the Court of Appeal held that the complete prohibition on disclosure in such cases was contrary to the Bill of Rights and the Basic Law. This does not, however, mean disclosure will necessarily be allowed. It means the trial judge will have to decide whether it is in the interests of justice to maintain anonymity. The test is whether it is necessary, for the submission of a viable argument, to disclose an informant’s identity. This is a difficult test for the defendant to pass and means that, in practice, the disclosure of an informant will very rarely be ordered. Andrew Raffell Andrew Raffell is a consultant at Chinese University and has been a practising criminal barrister in Hong Kong for 26 years. This article appeared in the South China Morning Post print edition as Revealing informants’ identity becomes issue of legal debate