Higher Rights of Audience Rules
(Cap. 159, section 73CA and Cap. 1, section 29)
(Enacting provision omitted—E.R. 2 of 2012)
[22 June 2012] L.N. 70 of 2012
(Omitted as spent—E.R. 2 of 2012)
In these Rules—
application (申請) means an application for higher rights of audience under section 39H of the Ordinance; assessment guidelines (評核指引) means guidelines issued under rule 19, as in effect at the material time; competency standards (能力標準) means standards issued under rule 18, as in effect at the material time; Examining Panel (審核小組) means an Examining Panel established under rule 17; full assessment of professional competence (專業才能全面評核)— see rule 4(4); higher court of Hong Kong (較高級法院) means any of the following—(aa)the Competition Tribunal; (15 of 2014 s. 15)(a)the Court of First Instance;(b)the Court of Appeal;(c)the Court of Final Appeal;(d)a court which before 1 July 1997 exercised jurisdiction similar to that of a court referred to in paragraph (a), (b) or (c).An application to the Assessment Board for higher rights of audience under section 39H of the Ordinance must be made in the form specified by the Board.
An application—
must contain the information required by the specified form;
must be completed in accordance with the instructions contained in that form;
must be accompanied by the documents or other material required by that form; and
subject to subrule (3), must be accompanied by the fees set out in items 1 and 2 of the Schedule.
An applicant who elects to make the application on the basis of exemption from the requirements prescribed by rule 4 is not required to pay the fee set out in item 2 of the Schedule.
An application may be made to the Assessment Board only during the period or periods specified by it under section 39J(3) of the Ordinance.
This rule is made under section 73CA(1)(a)(i) of the Ordinance for the purposes of section 39I(1)(c) of the Ordinance.
An applicant under section 39H of the Ordinance must demonstrate to the satisfaction of the Assessment Board that he or she possesses the necessary professional competence to exercise higher rights of audience in respect of the class of proceedings for which the application is made.
Such competence is to be demonstrated by the applicant sitting and passing a full assessment of professional competence at the time and place directed by the Assessment Board.
A full assessment of professional competence consists of examinations (whether written or oral or a combination of both) on the matters that are required by the competency standards to be assessed in a full assessment relating to the class of proceedings for which the application is made.
This rule is subject to rule 5.
An applicant under section 39H of the Ordinance may, in accordance with section 39I(3) of the Ordinance, elect to make the application on the basis of exemption from the requirements prescribed by rule 4.
This Part applies in relation to an application for which no election has been made to make the application on the basis of exemption from the requirements prescribed by rule 4.
In relation to an applicant, the full assessment of professional competence is to be conducted by an Examining Panel assigned by the Assessment Board.
The assessment is to be prepared, conducted and marked by the Examining Panel in accordance with the assessment guidelines.
The Examining Panel may determine the nature, form and number of examinations to be held for the purposes of the assessment.
The Examining Panel must, after it conducts an assessment, determine whether the applicant—
has passed the assessment by demonstrating the required level of professional competence; or
has failed the assessment.
The Examining Panel may not assess an applicant as having passed a full assessment of professional competence unless at least 3 members of the Panel agree.
An Examining Panel must, after it completes a full assessment of professional competence of an applicant, give to the Assessment Board a report setting out the results of the assessment.
The report must—
state the determination of the Examining Panel as to whether the applicant has passed the assessment or has failed the assessment;
if the Examining Panel determines that the applicant has failed the assessment, contain brief reasons for that determination; and
contain a brief assessment of the competency of the applicant.
In addition, the report must be accompanied by—
a copy of all written materials given to the applicant for the purposes of the assessment; and
a record of the responses of the applicant (whether written or oral) in sitting the assessment.
The report must be signed by each member of the Examining Panel.
This rule applies if the Assessment Board proposes to refuse an application or, in the case of an application made in respect of the class of proceedings specified in section 39H(2)(c) of the Ordinance, to grant the application only in respect of a class of proceedings specified in section 39H(2)(a) or (b) of the Ordinance.
The Assessment Board must notify the applicant in writing of its proposed decision. The notice must include brief reasons for the proposed decision and must inform the applicant of the provisions of subrule (3).
The applicant may, within the period fixed in the notice, make written representations to the Assessment Board requesting it to review its proposed decision.
A request for review made under subrule (3)—
must include a statement of the grounds on which the review is sought; and
must be accompanied by the fee set out in item 3 of the Schedule.
A decision of the Assessment Board in respect of a request for review made under subrule (3) is final.
As soon as practicable after the Assessment Board has made its decision under section 39K of the Ordinance, it must notify the applicant and the Council of the decision in writing.
If the Assessment Board has decided to refuse the application or, in the case of an application made in respect of the class of proceedings specified in section 39H(2)(c) of the Ordinance, to grant the application only in respect of a class of proceedings specified in section 39H(2)(a) or (b) of the Ordinance, the notice must include the reasons for the decision.
This Part applies in relation to an application for which an election has been made to make the application on the basis of exemption from the requirements prescribed by rule 4.
The applicant must satisfy the requirements of rule 13 and, if applicable, any requirements imposed on the applicant under rule 14.
The applicant must demonstrate to the satisfaction of the Assessment Board that he or she possesses the necessary professional competence to exercise higher rights of audience in respect of the class of proceedings for which the application is made.
Without limiting subrule (1), such competence may be demonstrated by the applicant establishing to the satisfaction of the Assessment Board that the applicant has—
practised as a Senior Counsel (or before 1 July 1997, as a Queen’s Counsel) at the bar in Hong Kong;
practised as a Queen’s Counsel or as a Senior Counsel in the capacity of advocate in—
Australia;
Canada (except the Province of Quebec);
England and Wales;
Ireland;
New Zealand;
Northern Ireland;
Scotland;
Singapore; or
South Africa;
practised as a barrister or as a solicitor, in Hong Kong, and during that time acquired substantial experience—
in the role of an advocate before the higher courts of Hong Kong;
as a member of a judicial or quasi-judicial tribunal in Hong Kong; or
as an arbitrator in Hong Kong deciding disputes in accordance with the law of common law jurisdictions; or
practised as an advocate in any other common law jurisdiction and during that time acquired substantial experience—
before the higher courts of that jurisdiction (being courts having the same or a similar status as the higher courts of Hong Kong);
as a member of a judicial or quasi-judicial tribunal in that jurisdiction; or
as an arbitrator in that jurisdiction deciding disputes in accordance with the law of common law jurisdictions.
If, on the basis of the application, the Assessment Board is not satisfied that the applicant possesses sufficient experience to exercise higher rights of audience in respect of the class of proceedings to which the application relates, the Assessment Board may require the applicant to sit and pass a specified portion of the full assessment of professional competence at the time and place directed by the Assessment Board.
If the Assessment Board requires an applicant to sit and pass a specified portion of the full assessment of professional competence, it is not necessary for the applicant to submit a new application under rule 3. The applicant may proceed with his or her application as originally filed by—
paying the fee set out in item 4 of the Schedule; and
sitting the specified portion of the full assessment of professional competence.
If the Assessment Board requires an applicant to sit and pass a specified portion of a full assessment of professional competence, that portion of the assessment is to be conducted by an Examining Panel assigned by the Assessment Board, and for that purpose rules 7 and 8 apply with any necessary modifications.
Rules 9 and 10 apply, with any necessary modifications, in relation to an application to which this Part applies.
For the purpose of conducting assessments of professional competence of applicants for higher rights of audience, the Assessment Board may establish one or more Examining Panels.
Each Examining Panel is to consist of 4 members appointed by the Assessment Board, of whom—
one must be selected from a list of not less than 6 solicitors submitted to the Assessment Board by the Council;
one must be selected from a list of not less than 6 barristers submitted to the Assessment Board by the Bar Council; and
one must be—
a former or retired judge of any higher court of Hong Kong; or
any other person who, in the opinion of the Assessment Board, is suitably qualified to be a member of an Examining Panel.
A member of the Assessment Board may not be appointed a member of an Examining Panel.
A member of an Examining Panel—
holds office for a period of 2 years; and
may resign from office by giving notice in writing to the Assessment Board.
A person may be appointed a member of more than one Examining Panel and may serve on more than one Examining Panel at the same time.
If, by reason of having an actual or potential interest in a matter before an Examining Panel or for any other reason, a member of the Panel is not able to participate in the performance of any function of the Panel, the Assessment Board may appoint a temporary member to act in that person’s place.
If a member of an Examining Panel resigns from office or for any other reason ceases to hold office before the expiry of his or her term of office, the Assessment Board may appoint a new member to act in that person’s place for the balance of the term of office.
A person appointed under subrule (6) or (7) must be selected in accordance with subrule (2) such that the membership of the Examining Panel continues to comply with the requirements of that subrule.
The Assessment Board may, by notice in writing, remove from office a member of an Examining Panel if the Assessment Board is satisfied that the member is unable or unfit to carry out the duties of the office due to permanent incapacity or other sufficient cause.
An Examining Panel may regulate its own procedure.
The Assessment Board is to issue standards against which the professional competence of applicants for higher rights of audience under section 39H of the Ordinance is to be assessed.
The standards—
must indicate the areas of professional competence that must be the subject of all full assessments of professional competence conducted under these Rules; and
must indicate, in relation to each of those areas of professional competence, the weighting that is to be given to that area of professional competence in the marking of the assessment.
Without limiting subrule (1) or (2), the standards may provide for applicants to be assessed on their competency in advocacy (whether criminal or civil), evidence, practice and procedure, ethics and court conduct.
The Assessment Board may amend any standards issued under this rule.
The Assessment Board may publish in any manner that it considers appropriate—
any standards issued under this rule; and
any amendment made under subrule (4).
The Assessment Board is to issue guidelines for the preparation, conduct and marking of assessments of professional competence by Examining Panels.
The Assessment Board may amend any guidelines issued under this rule.
The Assessment Board may publish in any manner that it considers appropriate—
any guidelines issued under this rule; and
any amendment made under subrule (2).
Any enquiry by the Assessment Board with the Council under section 39M(1)(a) of the Ordinance in relation to an applicant must be made in writing, and a copy of the written enquiry must be sent to the applicant at the same time.
Any information provided by the Council to the Assessment Board in reply to such an enquiry must be provided in writing, and a copy of the written reply must be sent to the applicant at the same time.
Except as provided by subrule (4), any information provided by the Council to the Assessment Board in reply to such an enquiry must not be disclosed to any other person.
Such information—
may be disclosed to any of the following persons, if such disclosure is made in connection with the performance by the Assessment Board of any function under the Ordinance—
any member of the Assessment Board;
any member of an Examining Panel;
any other person assisting the Assessment Board in the performance of its functions under the Ordinance;
may be disclosed to any person in respect of whom the applicant has given his or her consent to the disclosure; and
may be disclosed in accordance with an order of a court, or in accordance with a law or a requirement made under a law.
The copy of the written enquiry or written reply that is required to be sent to an applicant under subrule (1) or (2) may be sent in any manner the Assessment Board or the Council, as the case may be, considers appropriate.
A member of the Assessment Board may attend any sitting of an assessment of professional competence conducted by an Examining Panel under rule 7 or 15 as an observer.
Fees paid under these Rules are not refundable.
Subject to section 39I(1)(d) of the Ordinance, there is no limit on the number of times a solicitor may apply to the Assessment Board for higher rights of audience under these Rules.
To avoid doubt, nothing in these Rules is to be construed as limiting any power conferred on the Assessment Board under the Ordinance.
| Item | Matter | Amount |
| 1. | Application fee | $1,950 |
| 2. | Fee for sitting full assessment of professional competence as required by rule 4 | $8,130 |
| 3. | Fee for review of Assessment Board’s proposed decision under rule 9 | $2,270 |
| 4. | Fee for sitting portion of full assessment of professional competence as required by rule 14 | $5,110 |