Monthly Archives: March 2011

A Glimmer of Hope — Word from the Law Society!

Yesterday I received a glimmer of hope that my application for admission as a solicitor in Hong Kong is moving along.  The Law Society is notorious for its paper pushing and time consuming ways, made no better by its frequently unanswered telephones and voicemails, so I was not expecting to hear back from them as soon as 9 days since my submission of my Form 1C and Intention to Apply (you can see my earlier post on these steps).

Not surprisingly, the Law Society asked me to make some amendments to two documents (in both instances I’d say my “mistakes” were completely unwitting, and the instructions were not clear as to what they wanted), but on the up side, I hear once my amendments are made and my original certificates of good standing from my home jurisdiction are sent over (direct from the courts, as the Law Society can’t trust anything but!), I should be able to pick up my Form 3 certificate within a matter of days and proceed to the next steps to getting admitted.

I corrected those documents today and won’t be able to get them over to the Law Society tomorrow, but I was also told my certificates of good standing should arrive no later than next week, so fingers crossed that I will be a Hong Kong solicitor yet!

Advertisements

CDotD: The Obscene Articles Tribunal

It’s been a while since I’ve reported on a truly “crazy” discovery, and this post has actually been on the backburner for some time (due to my laziness and general inability to avoid distraction).  One morning while reading the South China Morning Post,  the best, if not only, English daily paper in Hong Kong, I came across a very odd notice under the Legal & General Notices section. 

It’s not that I find such notices surprising, and while I admit that I’d never  noticed them much in the New York Times, back home such things were usually relegated to less mainstream circulars, such as the Law Journal or something a tad more local like the Ronkonkoma Times (I made that last one up, but you get the gist). 

Another difference I noticed early on last year is that there are far more legal notices required to be published here in HK than I was accustomed, and I saw in the free daily rag (Hong Kong’s versions of AM News) such required prints on corporate filings or notices.  But this time, what surprised me was a notice printed by the Obscene Articles Tribunal, listing out the week’s obscene discoveries.

That’s right — apparently there is a three (or more) panel of adjudicators whose main goal in life is to classify and determine obscene articles.  No, they don’t go roving around in search of “obscene articles,” rather parties such as “authors, printers, manufacturers, publishers, importers, distributors, copyright owners or any person who commissions the design, production or publication of the articles concerned” submit them.   The Secretary for justice or any “authorized public officer” may also submit items.

Generally there are three classifications:

  • Class I – neither obscene nor indecent;
  • Class II – indecent ( which includes “violence, depravity and repulsiveness”); or
  • Class III – obscene.

The Tribunal may impose conditions or restrictions relating to the publication of a Class II article and Class III articles are entirely prohibited from being published.

In the examples I found in that day’s newspaper, all 8 cases, 5 DVDs and 3 magazines, submitted were found to fall under Class II – indecent.  The magazines had Chinese titles, but here are the titles to the “indecent” DVDs:

Supernova, Disabled Sex, Teachrs (sic) Beautiful Wife, Field Exposed, and Pure Love.

Two of the DVDs were ordered to have expunged certain segments (with the exact minutes listed), and each of the magazines were ordered to have certain pages expunged.

The Tribunal can actually make a determination that the publication of the article or the public display of the matter is intended for the public good.

So how do they do it? Apparently the governing Ordinance dictates that the Tribunal take into account:

  • the standards of morality, decency, language or behaviour and propriety that are generally accepted by reasonable members of the community;
  • the dominant overall effect of an article or matter;
  • the persons, classes of persons, or age groups intended or likely to be targeted by an article’s publication;
  • in the case of matter publicly displayed, the location of such display and the persons, classes of persons, or age groups likely to view it; and
  • whether the article or matter has an honest purpose or whether instead it seeks to disguise unacceptable material.

Classification of articles is conducted in private (reminds me of the US Supreme Court obscenity cases, where I heard tales of how one of the Justices was practically blind and needed his clerk to describe movies to him!) and done quickly —  an interim classification is made within 5 days of the article’s being submitted.

But fear not if your materials are deemed indecent, you can ask for a review (and pay the accompanying fee, of course), where  the Presiding Magistrate, joined by four or more adjudicators, reevaluate in a full on public hearing.  And ultimately you can  appeal on a point of law to the Court of First Instance of the High Court against a decision of the Tribunal within 14 days of that decision.

And what’s the big deal with obscenity?

Publishing, possessing or importing (for publication) Class III articles can get you a fine of $1 million and imprisonment of 3 years.

Publiching an indecent article to a juvenile may lead to a fine of $400,000 and imprisonment for 12 months on first conviction and $800,000 and  12 months for a second or subsequent conviction.

Failing to observe conditions or restrictions on publishing Class II articles will result in a fine of $400,000 and imprisonment for 12 months on first conviction and to a fine of $800,000 and imprisonment for 12 months on a second or subsequent conviction.

(*Note this is in HKD, but still – that’s some fine and wow to the jailtime!)

And btw, you too can become a member of the Tribunal by contacting the Communications and Technology Branch of the Commerce and Economic Development Bureau at 2189 2222 or check out http://www.cedb.gov.hk/ctb/eng/film/oat.htm.

Finally,  the Obscene Articles Tribunal does not classify films and broadcasting — that’s dealtwith under the Film Censorship Ordinance and the Broadcasting Ordinance.

Generally this sort of gestapo on speech gets me a bit nervous, having always been a gung ho First Amendment admirer, so I do wonder how well this sort of Tribunal works — the balancing of free speech and protection of the public.  I imagine there is something like this in every country, even the US, but whatever the American version is, it’s far less visible.  Does that make it any better?

So When Do I Actually Become a Hong Kong Solicitor?

Happy, happy, joy, joy — I’ve passed two heads of the OLQE, so can I be a Hong Kong solicitor now?  Not quite yet… and not for a while it seems!  Once again the Hong Kong Law Society has created another long and tortured process — this time, the application for admission.  What a drag.

While this is probably a very dull post, I’ve noticed many readers engrossed in all this OLQE talk, so I might as well fill them in on what they have to expect once they’ve overcome the giant hurdle of the Head(s). 

Step 1: File an intention of making an application for your certificate to be admitted.  Yes,  a filing of your filing (which, if you think about it, is actually a filing of a filing of a filing — read on).  Yet, they say this intention filing can be done at the same time as your filing for the certificate that says you can pass go.

In this form (yes, the Law Society has a form), you need to answer a quick survey of how you are not banned from any other jurisdiction, have been good in HK, that sort of thing.  This form has to be witnessed.

The intention must be filed 6 weeks prior to your application for the aofrementioned certificate.

Step 2, which is really Step 1, since you’re allowed to make this filing simultaneously: Make your application for the certificate to be admitted as a solicitor.  This is a form where you explain that you’ve passed or have been otherwise exempted from required examinations, include certified copies of such proofs, and otherwise assert your eligibility.  This includes a required residency period (you can either show that you’ve been in HK 3 months prior to this application, that you’ll be here 3 months once you’re admitted, or that you have maintained some kind of long-term residency that I don’t remember off the top of my head since it was inapplicable to me).  To do this, you need to include a certified copy of every single page of your passport, and heaven forbid that you’ve travelled in between, because you’ll need to explain every trip outside of HK and it seems that either way, you must include a check for HK$ 1,500 for someone to examine this proof.

You also need to get someone to witness an affidavit of identity to prove that you are you, and yes, more fees, include another check for HK$ 1,500 for the certificate.

Certificates take around 4 weeks to be issued.

Step 3: You get your certificate and now you need another HK qualified barrister or solicitor to move for your admissions in the High Court.  Details on this still a bit fuzzy, but I’ll get back to you HK-admissions crazy readers on that when I unearth them.  I hear it’s actually quite the ordeal, because once you are scheduled your court date, the movant of your application goes with you to court, where you will wear a robe (oh yeah — step 3.5, procure a robe), and hear a darling speech all about who you are and why you’re there that day. 

Step 4:  You are now a Hong Kong Solicitor! (Or at least, I think you are.)

Total costs (at least up to Step 3): $3,000, so long as you don’t have to pay anyone to witness your signatures and certify your copies.

Total time (up to Step 3): somewhere around 10 weeks!