Professor Young, Members of the University, Ladies and Gentlemen:
- Congratulations to all of you, Graduands. You have completed your degrees and survived the past four years of arduous studies, which were battered by vagaries unprecedented in the history of Hong Kong.
- Let me be honest. I did hesitate in accepting Professor Fu’s invitation to speak today.
- I spoke on the same occasion at the wonderful Loke Yew Hall on 18 November 2006 – about one year into my office as Secretary for Justice – when life was a lot simpler. I cannot possibly repeat what I said 16 years ago. And these days, I have been giving talks more on mental health, as opposed to the law.
- But then I bumped into a young barrister of Temple Chambers in the lift. She said “I am very excited with the trial coming up next week”. I found that really refreshing, because many of us preparing for an imminent trial tend to frown or sigh.
- I decided to ask a few more barristers in chambers, of different vintage, for things they might like to say to law graduates. I got some answers and felt encouraged to come.
- So, for today, if there is anything I say that you may find useful, credit goes to those fellow barristers who have kindly refreshed me with their thoughts.
- Mind you, if the combined time spent were billable by our respective hourly rates, Professor Fu would regret inviting me.
The Billable Hour
- That leads me to an article in the Financial Times in April this year written by Tim Harford. The title is “The billable hour is a trap”. It was referred to me by another young barrister in Temple, who also shared with me the following personal observation:
“There are many hours in life that can never be billed. … those hours can be just as (if not more) valuable in the long term and should still be recorded, …”.
- The FT article points out many lawyers are rich but miserable, and traces the unhappiness to the “billable hour”. It says:
“The whole framework of the billable hour makes it feel naggingly expensive to do anything non-billable”.
- The author also warns that because of the billable hour, lawyers would focus on narrow short-term goals rather than broader or deeper values such as maintaining skills, mentoring young colleagues, or living up to the highest ideals of the law.
- Very soon most of you will be entering the legal profession, and those joining the law firms will be caught by the billable hour regime. Barristers likewise, although the billable unit will be by the hour rather than the 6-minute increment.
- This article reminds me of something said by CS Lewis. Lewis said “only lazy people work hard”. It sounds paradoxical but the older you get, the more you will agree with this insightful comment.
- We may be super hardworking according to the time sheets or fee notes. But we may, in fact, be super lazy in life generally. We fail to diligently find out what really are essential apart from work, career or money. We dodge and procrastinate on all other non-billable subjects: sometimes important things like our health, our mental health, and sometimes people near us, especially people needing our care and attention.
- We are lazy in not disciplining ourselves to make important choices. We just react to whatever is urgent coming our ways. We fail to look out for what direction we should go, or what values we should cultivate. Our daily routine built on a billable framework drives us like slaves.
- No wonder many lawyers are miserable. I have heard from at least three very successful senior counsel complain of this curse:
“Cursed when you have work; cursed when you don’t have work”.
- So, young lawyers, be warned. Don’t fall into this trap. Draw the boundaries now. Mark out important things that stay completely outside the billable framework. Guard them ruthlessly. And start the discipline from the beginning of your working life. Trust me, you will enjoy a lot more freedom and happiness in due course.
- In Matt Damon’s 1997 movie “The Rainmaker”, after winning a massive claim against an insurance company, the underdog lawyer got famous but abandoned his lucrative legal practice to teach law. He said “if success and monetary rewards had overtaken, I would have become another shark in the dirty waters”. This line is sobering, lest we are at risk of becoming great white sharks in Hong Kong waters. Don’t let the billable hour blind you to everything else except the dollar sign.
- Don’t let the billable hour coach you to cut corners. Hone your skills even when the extra time is not billable. Think not just in terms of the aggregate of the minutes clocked, but in terms of the content or weight in each minute you contribute.
- Don’t let the billable hour lock you up in “curses”. Turn the curses into blessings: Blessed are you when you have work – and do it with all your heart. Blessed are you when you don’t have work – because you have more time to catch up with other important things that have been squeezed out by the billable things.
The higher calling of the law
- When time is more valuable than money, you had better spend it wisely.
- Let there be no doubt, the legal profession is consuming. If you immerse yourself into it, you had better search out and hold on to some solid reasons as to why it is worth investing your life into it.
- But if I ask you to take out the dollar sign, the social status, and perhaps the intellectual challenge, what is it about the legal profession that attracts you? What is the real purpose of it all? What makes you proud to be in this “vocation” as opposed to calling it an “occupation”? What is it about the legal practice that gives you a sense of excitement, delight and even hope? So that you do not mind, day after day, burning the midnight oil on the papers, and swallowing the bitter pill of the court room pressure?
- Earlier this month, the Hong Kong Federation of Youth Groups published the results of a survey in May on over 1,000 young people (aged between 15 and 34). It is sad to hear that 46.9% are pessimistic about the future development of Hong Kong and only 17.5% are optimistic.
- The “core values” that these young people would most like to be realized in Hong Kong are “freedom” (59.7%), “democracy” (41%) and “the rule of law” (35.9%).
- The past few years have driven all of us to ask very heart-searching questions as to what “freedom”, “democracy” and “the rule of law” really mean, and how these values interact with each other, and how they may be inter-dependent.
- GK Chesterton, an English writer and philosopher, used the analogy of a “fence” in the discussion of reforms. He said,
“There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, ‘I don’t see the use of this; let us clear it away.’ To which the more intelligent type of reformer will do well to answer: ‘If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”
- As lawyers, we, more than anyone else, are better placed to understand why we need the law to provide the necessary framework, with boundaries and signposts, that allows real freedom to be realized.
- The world, China and Hong Kong have all moved on with the times. And the times are without parallel. Just look at the lingering pandemic plaguing the world, the Ukraine war shattering families and complacency, the ever-increasing tension between the East and the West, the deepening global food, energy and debt crises, on top of worsening climate change and aggravating economic, racial and social divisions.
- We are used to the notion of “protecting” rights and freedoms, which tends to focus on the risk of erosion and the need to defend. However, youthe new generation of Hong Kong lawyers, be proactive, consider how you can help “realize” our cherished rights and freedoms to be enjoyed by the community at large, in the new national and international order of the day.
- As ever, legal boundaries need to be more clearly marked, signposts need to be more clearly set out, grey areas need to be cleared up, and the fine details of the law need to be elucidated by legal arguments and court judgments. Lawyers and the Court have crucial roles to play.
- The majority of the non-permanent judges of the Court of Final Appeal have come out to say that:
“at a critical time in the history of Hong Kong, it is more than ever important to support the work of its appellate courts in their task of maintaining the rule of law and reviewing the acts of the executive” .
- The continual service of these top jurists in the CFA will be the most compelling endorsement that Independent Judiciary remains firmly intact as the cornerstone of Hong Kong.
- There is still a high calling for lawyers in Hong Kong today and beyond.
- However, as you start your legal practice, being faithful to the rule of law is more likely to mean completing your run-of-the-mill files or cases faithfully to the best of your ability. The law, like medicine, if applied well, can make life better for those in need.
- I had the privilege to work with the late Charles Ching SC as his junior in a number of cases. Charles (one of our former CFA Permanent Judges) was famous for his brilliance as a cross-examiner. But few probably know how hard he worked in preparation. One late evening when we were going through the evidence, I asked Charles, who was then in his 50’s, what kept him going and working so hard when he was already at the pinnacle of his career. Charles took a sip of whisky and said:
“It is no ordinary work; it is a privilege and a great responsibility: your clients have entrusted some of the most important things in life with you.”
- In a speech he gave in Hong Kong, Chief Justice Roberts of the US Supreme Court said when he looked out of the window of the Mandarin Hotel to see the high-rise buildings, he was amazed not just by the physical architecture, but also by the legal architecture underneath. What he meant was the legal expertise in the drafting of the complex contracts, in the closing of financing deals, and even in the resolutions of the unavoidable disputes – the very capability and infrastructure we have to make Hong Kong one of the premier financial centres of the world.
- In my own limited experience, I can say, although it does not always happen, there are times when you know that justice is on your side, or, more accurately, you are on the side of justice.
- When you pick up a piece of key evidence to clinch your case, confront a dishonest witness with some undeniable facts, demolish skewed arguments of your opponents, or when the judge delivers a judgment that vindicates, or when the appellate court overturns an incorrect judgment, when those in the wrong are penalized, and when society is protected against many a vice or abuse …, you experience being part of something higher than all human endeavours in the court room combined. Justice shines like the noonday sun – very warm and warming indeed.
- Of course, there are times when you struggle as you seem to find yourself on the bleak opposite side. That is where your competence, and more importantly, your integrity, as a lawyer is put to stringent tests.
- There and particularly there, do you need to be firm and unyielding to expediency. Before going to court, give your client the best and honest advice after exhausting the factual and legal research, impress upon your client that the law is about “give and take”, about being “proportional”, and counsel your client not to expect or ask for more than what the law permits.
- In court, formulate the best and most respectable arguments without crossing the boundaries, assert the maximum that can legitimately be put forward but not beyond, and insist on discharging your duties to cite relevant cases and disclose relevant documents even if against your client’s case.
- So that at the end of the day, even if your side loses the case, you do not lose the respect of your client, of your opponent and of the Court. So that in discharging your duties faithfully, you contribute to the higher justice system and answer the higher calling as a lawyer.
- Have faith in the law and the legal system that you are trained in. You can still derive great satisfaction in practicing law and doing justice.
Be lawyers of steel quality
- We are and shall continue to be bombarded with very different opinions in the media on the status and future of Hong Kong’s legal environment, which may or may not reflect the reality.
- More immediately, when you enter the real working world, you will definitely come across people who hold very different views from yours, sometimes very polarized ones.
- I encourage you to subject every view, including your own view, to rigorous “fact checks”. Be “lawyerly”, do your research and test the assertions or verdicts against the evidence.
- Faced with unwarranted criticisms, prove them wrong by doing what is right rather than just talking back.
- However, remember not all criticisms are unwarranted. Try not to be too “lawyerly” at times. When you or your views are challenged, don’t always insist on playing the role of the opponent in our adversarial system. Suppress your pride to open your mind, listen carefully and pay attention, you cannot always be right.
- In the New York Times of 12 June this year there was a very helpful article by Tish Harrison Warren called “11 Small Ways You Can Help Mend the World”. One of the ways suggested is to “Make a steel man of others’ arguments”. Warren said:
“Making a straw man of our opponents’ arguments is easy. We portray them as ridiculous … , but dealing with steel men – that is, the best and smartest ideas of those of whom we disagree – not only strengthens our own thinking but helps us to better and more compassionately understand others. … Choosing to seek out the best arguments of those with whom we disagree requires humility and curiosity, and it makes the healthier societal discourse.”
- Refine the “steel” in your legal mind and legal skills, and strive to preserve integrity, the true “steel” in a person. Truthfulness coupled with competence and diligence bring out the most important service we lawyers can offer to the client, the system and the community.
- According to authoritative interpretations, President Xi has just given us an assurance that “One Country Two Systems”, including our common law system, will continue beyond 2047.
- In the next 25 years and beyond, Hong Kong and our common law legal system will continue to develop and evolve.
- Ladies and gentlemen, so will you. Don’t dwell on the past. Embrace the gift of the present. Get excited by what the flow of life will offer you next.
- Hold firmly to the law you have learned and the values you have come to cherish. We look to and depend on the reliability and resilience of our legal system to help Hong Kong develop and evolve, and to do so in accordance with the principles of justice and fairness enshrined in the law.
- The quality of the people involved in the daily contribution and dispensation of justice in our legal system is of utmost importance.
- There are close to 200 graduands today. Your cohort will become a significant contingent of our future legal force. And with all the new incentives and opportunities, you are better placed than those before you to contribute to the legal development of China. The next 25 years will be the prime time of your legal career. The next 25 years will also be decisive for the future of “One Country Two Systems” beyond 2047.
- How you run on the paths set before you will affect not just you, but also the good and the future of Hong Kong – this remarkable city we call our home and a place we dearly love. So run in such a way that you, and we together, may all attain.
- Many congratulations again, and may the Lord bless you all.
 “The Drift from Domesticity” (1929)
 Joint Statement to AFP of 5 Non-Permanent Judges from UK
3. 2006 年 11 月 18 日，當時我擔任律政司司長一年左右，在宏麗的陸佑堂向法律畢業生致詞，現在回看當時的世界委實簡單得多。我不可能重複十六年前的講稿，而最近我的講辭大多關於精神健康，而非法律。
4. 後來我在電梯裡碰到了天博大律師事務所 的一位年輕大律師，她正為著下週的審訊而感到十分興奮。為此我覺得眼前一亮，因為當要預備迫在眉睫的審訊時，大部份的大律師不是皺眉，就是嘆息。
8. 這讓我想到了今年 4 月《金融時報》由Tim Harford 撰寫的文章《計費工時是陷阱》，事務所另一位年輕大律師介紹我讀這篇，並且分享他個人感受：
「人生中有很多時間無法以收費多少來衡量 …… 但長遠來看，這些無法計算費用的時間同樣有價值（甚至是更高的價值），應該好好記錄下來……。」
12. 文章讓我想起魯益師 (CS Lewis) 說過：「懶惰的人才會努力。」聽起來很矛盾，但隨著年紀越大，越明白箇中深意。
17. 在麥迪文（Matt Damon）1997 年的電影《造雨人》中，其飾演的落泊律師贏了官司，讓保險公司支付巨額索賠後，聲名鵲起，但他卻放棄了利潤豐厚的執業，開始教授法律。他說：「若我讓成功和金錢支配我，我將成為濁水中的另一條鯊魚。」對白發人深省，讓我們不要成為香港水域的大白鯊，不要讓計費工時蒙蔽雙眼，只關注金錢。
23. 本月初，香港青年協會公佈於 5 月進行的調查結果，受訪者超過千多名15 至 34 歲的青年，很可惜，其中46.9% 人對香港的未來發展表示悲觀，只得 17.5%人感到樂觀。
26. 英國作家和哲學家 GK Chesterton 使用了「圍欄」來類比有關改革的討論：
35. 我有幸在不少案件中，擔任已故前終審法院常任法官、當時還是資深大律師沈澄 (Charles) 的副手，Charles以出色的盤問見稱，但很少人知道他花了多大心力來預備，某個深夜，當我們檢視證據時，我問當時五十出頭的 Charles，是什麼驅使他在事業巔峰時仍這般拼命，Charles喝一口威士忌道：
49. 今年 6 月 12 日《紐約時報》上，Tish Harrison Warren 發表了一題為《你可以幫助修補世界的 11 種小方法》的文章。其中一項建議，是「設法理解別人的論點」：
52. 在未來 25 年及以後，香港和我們的普通法將繼續發展和演變。
56. 今天有近 200 名畢業生，你們這一班生力軍，將成為法律界未來重要的力量。你比前人會有更多機會，為中國法治發展作出貢獻，接下來的 25 年將是你法律專業的黃金時期，也是決定2047 年後「一國兩制」走向的關鍵時間。
 “The Drift from Domesticity” (1929)