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Hong Kong MobileMaking a Global Population$

Helen F. Siu and Agnes S. Ku

Print publication date: 2009

Print ISBN-13: 9789622099180

Published to Hong Kong Scholarship Online: September 2011

DOI: 10.5790/hongkong/9789622099180.001.0001

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Professional Bodies and Professional Regulation in Hong Kong

Professional Bodies and Professional Regulation in Hong Kong

Chapter:
(p.247) 9 Professional Bodies and Professional Regulation in Hong Kong
Source:
Hong Kong Mobile
Author(s):

David A. Levin

Publisher:
Hong Kong University Press
DOI:10.5790/hongkong/9789622099180.003.0010

Abstract and Keywords

This chapter views professions as communities of practice that develop and apply specialized knowledge and skills that have been acquired through a lengthy and structured process of formal education and training. As these communities mature, they create associations, formulate codes of ethics, and seek to regulate the admission and work of occupational practitioners. The demand for professionals grows with the shift from an industrial to a postindustrial economy, as the standard of living rises and technological complexity increases. Their contribution to economic, social, and cultural life is well known. Businesses depend increasingly on a variety of professional services—accounting, advertising, analyses, designs, information technology, and legal expertise—to stay competitive. Society depends on educators for the creation and transmission of knowledge, and on culture, communication, and media specialists for information and entertainment. People depend on health care professionals, lawyers, and social workers to solve personal problems.

Keywords:   specialized knowledge, industrial economy, professional services, health care professionals, barristers

The professions can be viewed from different angles: as a distinctive way of organizing work, as creators and transmitters of cultural and social capital, as drivers of innovation, as an elite group in the class structure of modern societies, and as occupational communities (Brint 1994; Florida 2002; Freidson 2001; Goode 1957; Krause 1996; Larson 1977; Rossides 1998). These perspectives are neither exhaustive nor necessarily mutually exclusive but it suggests the desirability of starting with a working definition of the professions. I view them as communities of practice that develop and apply specialized knowledge and skills acquired through a lengthy and structured process of formal education and training. As these communities develop, they create associations, formulate codes of ethics and seek to regulate the admission and work of their practitioners (Abbott 1991).1

The demand for professionals grows with the shift from an industrial to a post-industrial economy, as the standard of living rises, and as technological complexity increases. In the case of Hong Kong too, the size of the professional stratum in Hong Kong has increased as the economy has undergone restructuring. As shown in Table 1, the number of professionals grew from 128,600 persons in 1994 to 209,600 in 2004. This represents a 63 percent increase in the number of professionals over the decade compared with the growth in the total employed population over the same period of only about 15 percent. As a result, the share of professionals in the total employed population rose from 4.5 percent to 6.3 percent.2 (p.248)

Table 1 Employed Professionals (thousands)

1994

1999

2000

2001

2002

2003

2004

Number of professionals

128.6

168.5

182.7

194.6

194.3

201.3

209.6

Total employed persons

2,872.8

3,112.1

3,207.3

3,252.3

3,231.6

3,219.1

3,308.6

Professionals as % of total

4.5

5.4

5.7

6.0

6.0

6.3

6.3

Source: Census and Statistics Department (2005b: 20).

The contributions of these professionals to our way of life are well known. We rely on the knowledge and skills of architects, engineers and surveyors to develop, maintain and upgrade our physical infrastructure. Businesses depend increasingly on a variety of professional services—accounting, advertising, analysts, designers, information technology, legal—to be competitive. Society depends on educators for the creation andtransmission of knowledge, and on culture, communication and media specialists for information and entertainment. We depend on health care professionals, lawyers and social workers to solve our personal problems. In short, “some professions provide us with critical personal services, others with functional knowledge without which much of our standard of living could not exist, and others with enlightenment without which we would be culturally impoverished” (Friedson 2001: 220).3

The significance of professional services for Hong Kong’s economic development and sustaining its competitive edge has received growing recognition from the Hong Kong business community and the Government since the early 1990s.4 Professionals and their associations have also been important participants in Hong Kong’s political, social and cultural life. Given their diverse contributions, one might expect to find a substantial body of academic writing about professionals and their organizations. My impression is however that the subject of professionalization and its impact on Hong Kong has been relatively neglected, at least compared to the attention given to two other major components of the social infrastructure of the economy—businesses and their associations, and trade unions.5

Why the Hong Kong professions are under-researched is puzzling though not my concern here. My focus instead is limited to one of the three main functions of the established professional associations. One of these functions is to advance knowledge of the profession or discipline (the learned society function). Another is to voice the concerns and interests of practitioners (the representation function). A third is involvement in setting standards of practice, and in the admission, training and monitoring of practitioners (the regulatory function). I focus on the last of these functions in the context of conflicting evaluations of it.

(p.249) The positive view is that the regulatory powers of professional bodies are essential to safeguard the public by excluding the unqualified, by maintaining and upgrading practitioner standards and by disciplining those who violate professional standards. Yet skeptical sociologists, among others, have questioned how committed professional bodies really are to protecting the public from incompetents. Goode (1980: 123) for example, in his discussion of the organizational protection of the inept, maintained that the professions “while claming to be the sole competent judges of their members’ skills, and the guardians of their clients’ welfare, refuse to divulge information about how competent any of them are” and make rules that “it is unethical to criticize the work of fellow members to laymen.” He also noted that when a new profession is organized, grandfather clauses usually permit older practitioners with less training to continue in practice without being tested. This critical view of the professions has been taken a step further by those who claim that professional bodies are less concerned with upholding the quality of work than they are with protecting themselves from competition, thus resembling in this respect the medieval European guilds.

Professional Bodies as Guilds

It was popular at one time to compare professional associations with guilds. The American political scientist V. O. Key wrote that “A characteristic of the politics of the professional association is their tendency to seek the reality, if not invariably the form, of a guild system” (Key 1958, quoted in Olson 1965: 137). Millerson (1964: 15) thought that the British qualifying associations resembled the guilds in terms of the structure of professional membership, the control of training and testing for admission as a fully fledged practitioner, and the regulation of standards of service and competence. Neo-liberal economists moved beyond descriptive comparisons to criticize the guild-like powers of the professional bodies. Milton Friedman (1962: 141) for example considered the spread in the U.S. of occupational licencing an anathema because it “frequently establishes essentially the medieval guild kind of regulation in which the state assigns power to the members of the profession.” Olson (1965: 137–38) criticized the “pervasive tendency towards compulsion in professional associations” including the compulsory membership requirement and the powers that the associations could exercise over the individual practitioner.

During the 1970s and 1980s the professions in Western countries came under attack from academics, consumer movements, governments (p.250) influenced by neo-liberal economic ideas, the courts and business firms for their anti-competitive, protectionist practices (Evetts 1999; Freidson 2001: 185–91). Krause (1996) argues that economic and political changes in the advanced societies over the past century have eroded the guild-like powers of the professions although unevenly across countries and professions. Yet concerns about the anti-competitive practices of the professions have not disappeared. It has for example been one focus of the OECD series on competition policy (OECD 2000).

So do the Hong Kong professional bodies with self-regulatory powers resemble guilds by virtue of the adoption of protectionist and anti-competitive practices?6 To attempt to answer this question, I surveyed two types of regulations relevant to the issue of competition in the provision of professional services. The first is what the OECD report calls structural regulation. This refers to rules governing entry to the profession, the granting of rights to perform certain services and the business forms in which professionals may practise or, in other words, to rules defining who can practise, what they can practise and the acceptable forms of practice. The second type is behavioural regulations that specify what practices professionals may or may not engage in. I focus on two of these behavioural regulations: those involving fees for service and the advertising of professional services (also called practice promotion).

I cover only a small number of professions that have been granted statutory powers of self-regulation—accounting, architecture, engineering, legal practitioners, medical practitioners and surveyors.7 I thus exclude from my purview other sizeable professional groups including the teaching profession, those in finance, insurance and other business services and the smaller professional bodies with statutory powers of self-regulation (e.g., planners, landscape architects, dentists).8

I rely on two main sources of information about the regulatory systems of the professions. Primary documentary sources include ordinances relevant to the profession, the constitutions and by-laws of the professional bodies and their codes of professional conduct. I also draw from government sources for statistical information and from secondary sources on particular professions. The second source of information is interviews with representatives from the relevant professional bodies.9

Below I review the structural and behavioural regulations of the selected professional bodies. In the final section, I attempt to generalize about restrictive practices based on the case studies and then turn to a discussion of why self-regulatory powers were delegated to certain professional bodies, whose interests are served by these regulatory systems, and the challenges currently facing the professions. Background information about each of the professions covered has been placed in Appendix 3.

(p.251) Accountancy

The Hong Kong Institute of Certified Public Accountants (HKICPA) is the only statutory licencing body for accountants in Hong Kong and is responsible for regulation of the accountancy profession. It was originally established in early 1973 as the Hong Kong Society of Accountants, incorporated under the Professional Accountants Ordinance of 1972. The Society was rebranded as the HKICPA in September 2004.

Regulation of Entry

The HKICPA regulates, under the Professional Accountants Ordinance, both professional membership requirements and the issuing of practising certificates. The normal first stage to professional membership is to become a registered student.10 The second stage is to complete the Institute’s Qualification Programme (QP) which consists of a Professional Programme and a Final Professional Examination. Prior to the launch of the QP in 1999, registered students of the Institute had to complete the former Joint Examination Scheme (JES), run since 1982 in collaboration with the London-based Association of Chartered Certified Accountants (ACCA). This arrangement expired on 31 December 2001.11

Members of an overseas accountancy body (through completion of its professional examinations) currently recognized by the Institute’s Council and who have sat and passed the Institute’s Aptitude Test on local law and tax, as the case may be, are eligible to become members of HKICPA.

The next stage is to meet practice experience requirements which vary depending on educational background. To be eligible to apply for a Practising Certificate,12 one must be a current member of the HKICPA and have had not less than four years of full-time approved accounting experience of which at least one year is post-qualifying experience or not less than 30 months full-time approved accounting experience if the experience acquired is all post-qualifying. An applicant must be ordinarily resident in Hong Kong and have passed the Institute’s Practising Certification examinations in auditing, local law and taxation. Members of the Institute who are graduates of the JES under the Hong Kong law variant or graduates of the QP are exempt from this examination requirement.

Forms of Business Practice

A CPA holding a Practising Certificate who wants to practise under the name of a firm/corporate practice must apply to the HKICPA for registration (p.252) of the name. A limited company registered under the Companies Ordinance is qualified to register as a corporate practice provided that it also satisfies the professional indemnity insurance requirements. Except with the approval in writing of the Council, a certified public accountant holding a Practising Certificate who knowingly (a) permits his name to be made use of in connection with the practice of public accountancy by a person who is not a certified public accountant holding a Practising Certificate; (b) employs, in or in connection with his practice as an accountant, a person whose name has been removed from the register, or (c) practises in partnership or through a corporate practice as an accountant with a person who is not entitled to practise as a certified public accountant (practising) is guilty of professional misconduct.

Fees

HKICPA does not set standard fees for various types of services but members have certain responsibilities under the professional code of conduct in relation to fees.13 They should inform a client in writing prior to commencement of any engagement of the basis upon which any fees proposed to charge that client for services will be calculated. Quoting a fee lower than another is not improper provided that care is taken to ensure that the client has a full and complete description of the services to be covered by the fee and the basis on which the fee is to be determined. Fees should not be charged on a percentage, contingency or similar basis in respect of audit work or reporting assignments incorporating professional opinions nor in preparation of tax returns. In the case of bankruptcies, liquidations, receiverships and administrations, the remuneration may, by statute or tradition, be based on a percentage of realizations or percentage of distribution. Contingency fees can be charged in such circumstances as advising on a management buy-out, the raising of venture capital, acquisitions search or sales mandates.

Practice Promotion

Before the 1990s, accountants were not permitted to advertise their services but the rules have been relaxed during the 1990s. Under the current Code of Ethics, advertising and promotional material is permitted but should not contain references to scale charges or amounts of fees for professional services. Members should not make comparisons between their fees and the fee of others. But it is permissible to make reference to a free initial (p.253) consultation at which fees will be discussed. The homepage of a website is not allowed to contain any references to scale charges or amounts of fees but information on scale charges or amounts of fees contained in a separate file on the website which is linked to the homepage is allowed. Members should not make generalized claims regarding size or quality of practice. They should not mail, deliver or send directly or indirectly material promoting their services. Leaflets, flyers, handbills, promotional gifts advertising or promoting the name of a member or member practice or its services may not be distributed in public places except at the location of events sponsored by the member or member practice during that event.

Medical Practitioners

The Medical Registration Ordinance (MRO) of 1957 empowered the Medical Council of Hong Kong to handle registration and disciplinary regulation of medical practitioners including doctors and surgeons. Although the Medical Council is not a professional association, it is comprised predominantly of medical professionals.

Admission to Practice

Under the MRO, medical graduates of the medical schools of The University of Hong Kong and The Chinese University of Hong Kong can be registered to practise medicine in Hong Kong once they have completed a 12-month internship training programme. Graduates from overseas medical schools who wish to practise medicine in Hong Kong are required to pass a 3-Part Licensing Examination and then to undergo a 12-month internship. In both cases, the internship training programme must be in hospitals accredited by the Central Internship Committee of the Hospital Authority. The Hong Kong Academy of Medicine has statutory authority to approve, assess and accredit specialist training within the medical and dental professions. Its 15 colleges conduct training and examinations to award specialist qualifications to qualifying candidates.

Forms of Business Practice

The Professional Code and Conduct of the Medical Council does not impose restrictions on the form of business organization for private medical (p.254) practitioners. The Code does state however that a registered medical practitioner should not associate himself with a non-qualified person in providing any form of healing or treatment for his patients or improperly delegate his medical duties to non-qualified persons. A doctor who is an owner, a director or an employee of, or in a contractual relationship with, an organization which, either directly or indirectly, provides medical services or administers medical schemes, may only continue such association provided that the organization conforms to the Council’s specified principles and rules relating to good communication and information.

Fees

The Professional Code has provisions (introduced in November 2000) on the providing of fee information to patients. Consultation fees should be made known to patients on request. In the course of investigation and treatment, all charges, to the doctors’ best knowledge, should be made known to patients on request before the provision of services. A doctor who refuses or fails to make the charges known when properly requested may be guilty of professional misconduct. Another rule is that a doctor should not charge or collect an excessive fee. A third rule is that a doctor should exhibit a notice in his clinic informing patients about their right to know the fees involved.

Practice Promotion

Self advertisement, canvassing or publicity to enhance or promote a professional reputation for the purpose of attracting patients constitutes professional misconduct. A doctor in private or public service can provide information about his or her professional services to the public only in specified ways. For example, a doctor “may exhibit in connection with his practice any sign which, in relation to its nature, position, size and wording, is reasonably necessary to indicate the location of, and entrance to the premises concerned.” Not more than two signboards may be exhibited and only on the premises at which the practice to which they refer is connected. The signboards should not be ornate or illuminated (except at night or where situated in a dark place). Any such illumination must be the minimum necessary to allow the content to be read and must not flash. There are specifications of permitted sizes and measurements in an appendix to the code.14

(p.255) There is a rule about what information may be carried in stationery (visiting cards, letterheads, envelopes, prescription slips, notices). Announcements of commencement of practice or altered conditions of practice (e.g. change of address, partnership etc.) are permissible only in newspapers provided that all announcements are completed within two weeks of the commencement/change taking place. There are restrictions on the size of the announcement and specification of what information it may contain. Similar announcement through other media (including printing, mailing, broadcasting and electronic means) is not permitted and photographs are not allowed. There is specification of what information may be included in telephone directory entries and an internet homepage.15

Solicitors and Barristers

The Legal Practitioners Ordinance grants powers to the Law Society and the Bar Association to regulate matters relating to the admission and regulation of their practitioners.

Admission to Practice

There is no statutory body to recognize the qualification of solicitors and barristers since the Court is the authority for the admission of legal practitioners. The Law Society and the Bar Association have the power to set requirements for admission to the profession subject to the approval of the Chief Justice.

The common route for gaining admission to practise as a Hong Kong solicitor involves three stages. The first stage is to complete the Bachelor of Laws degree from a Hong Kong university or an approved overseas university. Alternatively, prospective lawyers may undertake the LLB degree or its equivalent by distance education, commonly through SPACE of HKU. The second stage is to complete successfully the one-year Postgraduate Certificate in Laws (PCLL) offered at The University of Hong Kong and the City University of Hong Kong. Both HKU and CityU admit to this programme not only their own students but also those who have completed distance education studies or undertaken their LLB at an overseas university.

The third stage is for those wanting to be admitted as solicitors (the majority of those completing the PCLL) to complete a two-year trainee solicitor contract under which they are employed by a solicitor and (p.256) undertake further on-the-job training with that solicitor. Once the training is completed, normally two years, and provided the individual has met residency requirements, he/she is eligible to apply for admission as a solicitor. Admission to practise as a barrister also requires successful completion of the PCLL degree followed by pupilage with a practising barrister, normally for one year (Redmond and Roper 2000:1–2).

The rules governing eligibility for admission to practise as a solicitor were substantially revised as a result of Legal Practitioners (Amendment) Ordinance of 1994. Admission is no longer conditional upon Commonwealth citizenship or seven years’ residence in Hong Kong but open to anyone who complies with the professional requirements stipulated by the Law Society. The new rules make a distinction however in requirements for applicants from common law and non-common law jurisdictions. Those from common law jurisdictions seeking admission as a solicitor in Hong Kong first have to be entitled to practise the law of an overseas jurisdiction, have had at least two years of post-admission experience in the practice of law of that jurisdiction, and be in good standing in that jurisdiction. If they meet these requirements then they are eligible to sit the Overseas Lawyers Qualification Examination. If they pass all Heads of the examination that they are required to take (exemptions from some of the Heads are possible) and meet residency requirements, then they are eligible for admission to practise as a solicitor. Those from non-common law jurisdictions face similar requirements except that they must have had at least five years of experience in the practice of law of their original jurisdiction of admission.

Another set of rules has governed the practice of foreign lawyers since the implementation of the Foreign Lawyers Registration Rules in 1994. A person who offers his services to the public as a practitioner of foreign law, other than a solicitor or barrister, is required to register with the Law Society as a Foreign Lawyer. A registered foreign lawyer is prohibited from practising Hong Kong law and from employing or joining into partnership with Hong Kong solicitors. A registered foreign lawyer can be employed as a foreign legal consultant by a Hong Kong solicitor but the number of foreign lawyers in the firm must not exceed the number of Hong Kong solicitors. Once registered, a foreign lawyer is subject to the jurisdiction of the Law Society and is bound by the Legal Practitioners Ordinance, subsidiary legislation and the Code of Conduct of the Law Society.

In the case of barristers, The Legal Practitioners (Amendment) Bill 1999, enacted at the end of June 2000, amended section 27 of the Legal Practitioners Ordinance so that privileges previously accorded those called to the Bar in England or Northern Ireland, or admitted as an advocate in Scotland, to be admitted as barristers in Hong Kong were removed.16 With (p.257) effect from 28 March 2003, admission and pupillage are governed by the new provisions of the Legal Practitioners Ordinance and its subsidiary rules. A person is now eligible to apply for admission as a barrister if he/ she is a holder of the PCLL from The University of Hong Kong or the City University of Hong Kong, is a solicitor in Hong Kong or is an overseas lawyer. A Hong Kong solicitor, to be qualified for admission as a barrister, must have been admitted as such for at least three years either immediately or in any case not more than 12 months before the date of his application for admission and during that time must have practised as a solicitor in Hong Kong or have been employed by the Government as a legal officer. An overseas lawyer, to be qualified for admission, must hold a currently valid certificate of admission as legal practitioner in his/her jurisdiction of admission; have been in practice for at least three years in the jurisdiction of admission; be a person of good standing in the jurisdiction of admission; and pass the Barristers Qualification Examination.

Forms of Business Practice

The situation a decade ago was that solicitors in Hong Kong had to practise either as sole practitioners or in partnership with other solicitors. Multi-disciplinary practices with other professionals were not permitted. Solicitors were not allowed to incorporate their practices as companies. Nor were they allowed to form multi-national legal practices so that if a person wanted advice on the law of Hong Kong and of another jurisdiction there was no multi-national legal practice to turn to. Law firms in Hong Kong could only practise as a local firm or as a firm of foreign lawyers.17 The Attorney-General’s 1995 Consultation Paper recommended relaxation of these restrictions but these proposals were eventually dropped.

Solicitors are still not allowed to organize their law practices in the form of a corporate structure, either with or without limited liability.18 They are not permitted to enter into partnerships with other professionals since such an arrangement would breach the rule against profit sharing with non-qualified persons. The only change has been that under Solicitors Group Practice Rules (effective from January 2003), two or more solicitors or law firms may conduct their businesses from the same address as separate practices but co-operate with each other in sharing the use of facilities and unqualified staff.

Barristers are not permitted to enter into partnership or incorporated practices with another barrister, or with solicitors or other professionals. But there has been a relaxation of some rules, as recommended by the 1995 Consultation Paper on Legal Services, restricting access to barristers. A rule (p.258) in the Bar’s Code of Conduct that prohibited an employed barrister from instructing a practising barrister without the intervention of a solicitor has been dropped. A rule that prohibited barristers from acting directly for a client without instructions from a solicitor (subject to such exceptions “as may be authorized by custom or the Bar Council”19 ) has been modified to allow “Direct Professional Access” whereby barristers may accept work directly from a member of a recognized professional body. The three recognized professional bodies at present are the HKICPA, the Hong Kong Institute of Company Secretaries, and The Chartered Institute of Arbitrators.

Fees

The calculation of solicitors’ fees depends on whether they relate to non-contentious matters (e.g., commercial or property transactions) or contentious matters (litigation or the resolution of disputes). A decade ago, for some types of non-contentious matters (notably conveyancing), fees were charged according to one of several scales laid down by a Costs Committee set up under the Legal Practitioners Ordinance. Charging less than the scale fee could be considered professional misconduct and result in disciplinary action under Rule 3 of the Solicitors’ Practice Rules. Following the Attorney-General’s 1995 Consultation Paper which recommended that scale fees for conveyancing should be abolished on the grounds that the system offered no incentive to cost-efficiency and interfered with “normal market forces,” the Legislative Council (LegCo) passed the Legal Services Legislation (Miscellaneous Amendments) that included a provision to render the conveyancing scale fee non-binding.20

The Law Society’s Guide to Professional Conduct states that a solicitor must not overcharge. The client has a legal right, under the Legal Practitioners Ordinance, to apply to the High Court to have the disputed bill taxed (i.e., assessed) by a court official. If the court official (Taxing Master) reduces the bill substantially, the Court will report the solicitor to the Law Society for overcharging and disciplinary proceedings may be commenced against the solicitor. A solicitor may advertise his fees but any publicity concerning charges or a basis of charging must comply with the Solicitors’ Practice Promotion Code. Contingency fee arrangements are prohibited in contentious proceedings.21

Barristers normally charge fees for attendance in court in the form of a “brief” fee for attendance in court for the first day (inclusive of preparation) and a “refresher” for each subsequent day. Fees charged by barristers are not fixed by scale nor subject to direct control by taxation of the Court. A barrister is free to negotiate with a solicitor the fees he charges. Contingency fee arrangements are prohibited.22

(p.259) Practice Promotion

Before 1992, rule 2 of the Solicitors’ Practice Rules stated that Hong Kong solicitors were forbidden, directly or indirectly, to invite instructions and to advertise their practice, subject to the provisions in the Solicitors’ Publicity Code and in the absence of reasonable justification. A new rule 2 was introduced in 1992 and the Publicity Code was replaced by the Solicitors’ Practice Promotion Code.23

In November 1996, the Council of the Law Society announced that the Chief Justice had agreed to two amendments to the Solicitors’ Practice Promotion Code with respect to advertising.24 First, a paragraph of the Code which formerly prohibited practice promotion “which may reasonably be regarded as being in bad taste” was replaced by a provision prohibiting practice promotion “which may reasonably be regarded as bringing the solicitors’ profession into disrepute.”25 Second, a paragraph which formerly prohibited practice promotion on television, radio, in the cinema and in public areas, with limited exceptions, was deleted. Practice promotion in any medium thus became acceptable provided the practice promotion complied with the general principles of the Code.

The Practice Promotion Code states as a general principle that practice promotion shall be decent, legal, honest and truthful and then specifies in some detail what would be considered unacceptable forms of practice promotion.26

The Code of Conduct for the Bar of Hong Kong states that a barrister may not, or cause or allow to be done on his behalf, anything with the primary motive of personal advertisement or anything likely to lead to the reasonable inference that it was so motivated.27 The Attorney-General’s 1995 Consultation Paper suggested that the Bar Association should encourage the dissemination of information about the services offered and fees charged by barristers but the Code of Conduct still remains restrictive except that Members of the Bar Association may now specify in the Bar List their areas of practice, their qualifications, and the year(s) when they were called to the bar.

Architecture

The Hong Kong Institute of Architects (HKIA) and the Architects Registration Board (ARB) are involved in the regulation of the architectural profession under the relevant ordinances.

(p.260) Admission to Practice

The requirements to become a member of HKIA are (a) to hold a degree or a diploma in architecture recognized by the Council of HKIA, have two years of post-graduate architectural experience or its equivalent, and have passed the HKIA/ARB Professional Assessment or its approved equivalent, or (b) to be members of any other architects’ association, institution or registered bodies recognized by the Council for the purpose of admission.28

The qualifying examination, previously called the Professional Practice and Practical Experience Examination, was once offered only to graduates of HKIA recognized or accredited schools. Since 1996, candidates of different educational and professional backgrounds including those from schools of architecture that are not recognized may take the assessment and become qualified members of the HKIA and apply to become Registered Architects.

The requirements for registration set by the Architects Registration Board include (a) membership of HKIA, or membership of an architectural body accepted by ARB as being of a standard not less than that of a member of the Institute; or have passed examinations in architecture and other subjects and has received training and experience as the Board may accept; (b) one year’s relevant professional experience in HK before the date ofapplication for registration and (c) ordinarily resident in HK. Once registered, the practitioner is allowed to designate himself/herself as such, i.e., as an Architect or Registered Architect and to use the initials R.A. after his/her name.

Another level of qualification involves becoming an Authorised Person (AP) in order to be eligible to perform certain types of work or duties. APs are experienced architects, engineers or surveyors who, once registered with the Building Authority, are authorized to submit building plans to the Building Authority for approval. To be registered as APs, applicants must have achieved professional qualifications and proven experience (Rowlinson and Walker 1995: 51–52). They are also required to attend a professional interview with the Authorized Persons Registration Committee.

Forms of Business Practice

Multidisciplinary practice is acceptable for architects but a firm or company must not use the description of “architects” or “registered architects” or initials “R.A.” unless the business, so far as it relates to architecture, is under the full-time control and management of a registered architect.

(p.261) Fees

The Code of Professional Conduct for Architecture used to state that a member shall uphold and apply the HKIA Agreement between Client and Architect and the Scale of Professional Charges contained in it.29 A member who is offering professional services must not revise a fee quotation to take account of the fee quoted by another architect for the same service. Members may not work “speculatively” nor compete with one another in respect of percentage fees or time charges. Where a prospective client is considering the engagement of one of a number of firms the members concerned may give guidance on the engagement of architects but shall not submit estimates of fees for competitive purposes.

There is a complex system for setting fees in architecture that distinguish between “Normal Services” and “Other Services.”30 Normal Services are services normally provided by an architect for a building project. Such projects are broken down into a sequence of Work Stages A to F.31 Fees for Work Stages C to F are calculated as a percentage of the total construction cost of the works. Fees for Work Stages A and B and for other services which are likely to vary widely are charged additionally on a time basis.32

The Government used to follow the scale fee when inviting tenders for building projects. About five years ago, the Government instituted the “two envelope” system that introduced competitive bidding for all aspects of building projects including architectural fees. Private sector developers no longer felt obligated to adhere to the architects’ scale (interview). At an AGM of the HKIA in 2000, members voted to change the scale from a mandatory to a recommended scale. The Introduction to the Agreement between Client & Architect & Scale of Professional Charges now states that members are “encouraged to uphold and apply the Conditions of Engagement adopted by the Institute.”

Practice Promotion

The professional code for architects states that a member must state relevant provable facts only in any method adopted for promoting professional services. Advertisements should be “unostentatious.” A member may not use a comparative or superlative in an advertisement “except in a measurable matter.” A member may not, either directly or by implication, make a comparison of his own with any other architectural practice.

(p.262) Surveying

The Hong Kong Institute of Surveyors (HKIS) and the Surveyors Registration Board (SRB) are responsible under the relevant ordinances for regulation of the surveying profession.

Admission to Practice

The main route to membership in HKIS is to hold a recognized academic qualification, join the Institute as a Probationer, then commence relevant divisional Assessment of Professional Competence (APC) and complete training which can last from 22 to 33 months depending on the division. There is an alternative technical route for graduates of approved local sub-degree programmes. An alternative route applies to surveyors holding qualifications from recognized overseas professional surveying institutions.33

The requirements to become a registered surveyor include corporate membership of the HKIS or corporate membership of a recognized overseas body; or have passed examinations in surveying and other subjects and having received training and experience accepted by the SRB as a qualification of a standard not less than that of a member of HKIS. Other requirements include one year’s relevant professional experience in Hong Kong and to be ordinarily resident in Hong Kong.

The role of land surveyors in measuring and setting out land boundaries is regulated by the Land Survey Ordinance. The Land Surveyors Registration Committee established under the Land Survey Ordinance vets applications for Authorised Land Surveyors. The requirements to practise as an Authorised Land Surveyor include corporate membership of HKIS (in the Land Surveying Division) or of a land surveying institute that the Committee recognizes and one year post-qualification land boundary survey experience in Hong Kong. The Buildings Ordinance sets out requirements for a surveyor to be eligible to take the Authorised Persons tests set by the Buildings Authority. The Companies Ordinance and the Securities and Futures Commission set out certain specific qualification requirements to act as professional valuers. Members of HKIS are eligible but this activity is not restricted to them.

Forms of Practice

There are no specific restrictions on the business forms in which surveyors may practise.

(p.263) Fees

Each Division in surveying has its own recommended scales of professional charges. The Building Surveying Division has a recommended scale of charge for works associated with alteration, addition, renovation, refurbishment, fire safety improvement, etc. It is in the form of a sliding percentage figure depending on total construction cost (from 15 percent for the first HK$500,000 down to 6 percent for construction cost over ten million dollars). Where work stages are defined, there is as in architecture a system for apportionment of fees for stage of service.34

The Land Survey Division has different recommended scale charges for type of surveying work: cadastral survey, geodetic survey, engineering survey, hydrographic and marine survey, aerial survey and photogrammetric services, and project management.35 The scale in the case of Quantity Surveying “is for use when an inclusive scale of professional charges is considered to be appropriate by mutual agreement between the employer and the quantity surveyor.”36 General Practice has a Scale of Charges that “is advisory in nature and published for the guidance of Professional Surveyors.”37

The HKIS Rules of Conduct states that a Member shall not revise his quotation for services to take into account the fee quoted by another Member for the same services if he has already quoted a fee for such services; and shall not quote a fee for professional services which is based on but less than the fee quoted or charged by another Member for the same services.

Practice Promotion

The HKIS code states that a member shall not advertise his service in a manner derogatory to the dignity or reputation of the Institute or the surveying profession nor solicit instructions for work in a manner that may bring the Institute or the surveying profession into disrepute.

Engineering

The Hong Kong Institution of Engineers (HKIE) is the only statutory qualifying body for engineers in Hong Kong. The Engineers Registration Board (ERB) was established under The Engineers Registration Ordinance enacted in 1990 to establish the professional status of engineers practising in various disciplines, and to bring under regulatory and disciplinary control (p.264) those professionals responsible for safety and economic matters. A person who is on the register may use the title “Registered Professional Engineer,” or “R.P.E.,” with reference to the engineering discipline(s).38

Routes to Entry

HKIE sets education, training, experience and professional assessment requirements for membership but with some variation in formal training requirements according to its specific disciplines. It provides four alternative routes to professional qualification: the Formal Training route, the General Experience route, the Mature route and the Product Template route.

The criteria for the Formal Training route include (a) at least 25 years of age, (b) have an accredited honours degree or an acceptable equivalent in a recognized engineering or technological discipline, (c) have received adequate training (two years of pre-approved formal training for all disciplines except Civil, Structural, Environmental and Geotechnical disciplines which require three years), (d) have received sufficient responsible experience (two years for all disciplines except Civil, Structural, Environmental and Geotechnical disciplines which require one year), and (e) satisfied the requirements of Professional Assessment (an essay plus an interview).

The age and honours degree criteria for the General Experience route are the same as those for the Formal Training route plus a minimum of five years of general experience, a minimum of one year of responsible experience, and meeting the Professional Assessment requirements.

The Mature route is for those over 35 years of age and with either (a) recognized academic qualifications and a minimum six years’ experience or (b) non-recognized academic qualifications and fifteen years’ progressive experience, plus satisfying Professional Assessment requirements.

The Product Template route is intended to accommodate those who have a status equivalent to professional membership from institutions other than those with which HKIE has reciprocal recognition agreements. The requirements include a minimum four years of relevant experience. A Pre-assessment Review Panel will determine if an applicant is eligible for Professional Assessment. If eligible, then the applicant must satisfy Professional Assessment requirements.39

Forms of Business Practice

The HKIE Rules of Conduct specify that a person including a firm or company shall not use the description of “registered professional engineers” (p.265) or the initials “R.P.E.” unless at each place where the persons carries on the business of engineering, that business is conducted under the supervision of a registered professional engineer of the appropriate discipline. For multidisciplinary practice, the business, so far as it relates to engineering, must be under the full-time control and management of a registered professional engineer of the appropriate discipline.

Fees

Rules of Conduct make no reference to fee setting.

Advertising

There is no specific mention of advertising or practice promotion in its code but Rule 2 on Responsibility to Colleagues states that “A member of the Institution shall not maliciously or recklessly injure nor attempt to injure whether directly or indirectly the professional reputation of another engineer.” This presumably would apply to the making of invidious comparisons among engineers.

Summary and Conclusions

The regulatory systems of the professional communities of practice discussed above share certain features. They are based on ordinances that establish qualifications to practise and qualifying bodies. The objects of the professional bodies as found in the relevant incorporation ordinances and constitutions of these bodies make reference to the function of regulating conduct of members of the profession.40 Based on these objects, the professional bodies have formulated codes of conduct (varying in their degree of elaborateness) and rules of practice regarding behaviour towards clients, co-professionals and the public. There are provisions in the relevant ordinances for investigation and disciplinary panels (sometimes called tribunals or committees) that can be activated in the event of complaints that involve allegations of serious professional misconduct.

There are also some variations in these systems. In the case of medical practitioners, the Medical Council with the powers to set admission standards, formulate a code of ethics and to take disciplinary actions was established separately from the professional associations.41 In the case of (p.266) architecture, engineering and surveying, the regulatory regime is comprised of the relevant professional body plus the statutory registration boards. In the case of accountancy and law, the relevant professional bodies are designated by ordinances to handle all regulatory matters.

These self-regulatory regimes grant the professions, at least in theory, a high degree of autonomy and status.42 They have the powers to set entry requirements, to write their own code of practice or ethics, to establish a disciplinary mechanism to deal with complaints from the public and to discipline members found to have violated practice rules or codes of conduct. The professional bodies, or the professional body plus the registration boards, or a Council in the case of medicine, control entry into the profession by determining and applying requirements for certification of necessary educational and experience qualifications, among other criteria. Registration in turn confers the right to use professional titles and the right to perform specified types of services although the latter rights are not always granted exclusively to a given profession.

The scope and density of structural and behavioural regulations vary among the professions examined. Engineering appears to be the most liberal in this respect. Accounting, law and medicine seem the most highly regulated while architecture and surveying fall in between these extremes.

Vestiges of guild-like regulations remain but there is also evidence of a relaxation of regulations affecting competition in the provision of professional services. Regulations governing entry have changed over the past decade, following Hong Kong’s commitment to observe GATS, to create a more level playing field with respect to the opportunity for non-local professionals to attempt to qualify locally. In the case of law, some regulations criticized by the Attorney-General’s 1995 Consultation Paper on Legal Services as hampering efficiency or adding to costs, have been changed. Barristers may now appear in court without a solicitor or his representative present in certain circumstance and the two-counsel rule was abolished. Members of recognized professional bodies now have direct access to barristers without having to approach solicitors first. The Law Society and the Bar Association have made rules to govern movement between each other’s profession. The issue of opening up rights of higher audience to solicitors remains unresolved although the Chief Justice announced on June 7, 2004, his decision to set up the Working Party on Solicitors’ Rights of Audience to consider whether solicitors’ existing rights of audience should be extended.

The professional bodies of solicitors and barristers continue to impose restrictions on the form of business organization. Those for architects, solicitors and surveyors have had rules that restricted price competition (p.267) but these have undergone some changes. The once mandatory fee scale for conveyancing work has been abolished. The fee scale for architecture was undermined by the government’s decision to tender on price for public projects including architectural fees.

Regulations restricting advertising remain although with some relaxation in the past decade in the case of accountants and solicitors.

Why Self-Regulation?

Professional groups have self-regulatory powers because the colonial government granted them these powers. The regulatory systems were modelled to a large extent on those of similar British professional bodies.43 The Basic Law affirmed that the existing regulatory regimes for the professions would remain intact in the post-colonial period.44 The question then is why did the colonial government delegate these powers to particular professional bodies in the first place? An explanation might start with the general orientation and strategy of the colonial government towards social management of the economy. This entailed providing a framework within which occupations were generally free to organize themselves and control their own affairs. But why should the colonial government then privilege certain professional occupations by granting them statutory powers of collective self-management through their professional bodies or a council in the case of medical practitioners? One reason might be persistent lobbying by certain professional bodies for these powers. Another reason might be that the government recognized it lacked the resources and expertise to do the regulating. Moreover, it may have supported self-regulation for certain professions because it needed their knowledge, skills and support for its own administrative purposes.

There is an illustration of this last point from accountancy (Vittachi 1999: 19). In 1966, the then Commissioner of Inland Revenue, Arthur Duffy, found the quality of business tax returns received by his office so abysmal that it made it difficult for his staff to do their job. So he contacted some senior accountants to ask what could be done about the situation. This led to the formation of an Accountants Working Party and eventually to the Professional Accountants Ordinance and the formation of the Hong Kong Society of Accountants. This example suggests the need for studies of the top-down and bottom-up processes involved in formation of professional bodies. It would also be useful to examine cases of professional bodies whose requests for statutory self-regulatory powers have been rejected.

(p.268) In Whose Interest?

Self-regulatory powers grant the professions the right to set entry requirements for admission to practise, to decide what forms of business practice are acceptable, to set rules relating to fees, and to control advertising by members. The irony is that these powers have enabled the professional bodies to regulate competition in the provision of services, in ways that resemble guild practices, in contrast with the free market principles that supposedly underpin Hong Kong’s economic success. A justification for these restrictions is that professionals deal with matters that are critical to personal, organizational and societal well-being. Professional peers are in the best position to decide who is qualified to practise, what standards of practice are in the best interests of the public, what constitutes a serious violation of practice standards, and what punishment should be meted out to those who violate these standards.

The control of competition in the provision of professional services is thus viewed as a solution to market failure arising from the asymmetric information between buyer and seller of professional services:

Professional regulation is often addressed to a perceived “market failure” in the market for professional services. In some cases, consumers are unable to assess the quality of services that have been provided to them and, in some cases, are not in a position to determine which services they should purchase. As a result, it is feared that competition in professional services will lead to consumers being offered low quality and inappropriate services.

(OECD: 7)

The Bar Association (1995: 3) used a similar type of argument in its response to the Attorney-General’s 1995 consultation paper on legal services:

Only air-heads would argue that competition engenders quality and stimulates efficiency and cost-effectiveness when the consumer is in no position to judge the quality, efficiency and cost-effectiveness of the work done by the professional.

One problem with this argument is that, as the quotation from the OECD report suggests, consumers are not an undifferentiated mass. Corporate consumers presumably know what they want and whether they are receiving value for money. Individual consumers also differ in their knowledge about what constitutes effective and efficient professional service. Rising levels of education and access to information through the internet probably reduce, on average, the gap in knowledge between the professional and individual consumers.

(p.269) Another problem with the market failure argument is that studies cited by the OECD report find that the prediction of a race to the bottom among professional practitioners if restrictive practices are relaxed or removed is overblown. One reason why this doesn’t happen is that success in professional practice depends a lot on trust and reputation. Cutting corners can in the long run undermine trust, damage reputation and hurt business. Doing so in a way that violates professional standards also carries the risk of disciplinary action including the ultimate sanction of removal of the licence to practise.

Of the regulations discussed, those relating to control over requirements for admission to practise are perhaps the most controversial. It is sometimes claimed that the self-regulatory professional bodies are prone to use their monopoly powers to exclude, or at least make it very difficult for, non-locally qualified professionals to practise.45 This is the gist of remarks by a former LegCo member, Martin Barrow, during the 1995 debate on the Medical Registration (Amendment) Ordinance when he asserted that certain Hong Kong professions did not match “our overall profile of an open and international city.” He singled out in particular the medical and legal professions for “fighting year after year to maintain a closed shop.” Was this, he asked, in the interests of the community as a whole? (Proceedings of the Legislative Council 28 July 1995: 6439–40).

Description of a profession as a closed shop has several possible meanings. One is that membership in the professional body is mandatory in order to be able to practise. This is the case for the professions covered here except engineering and also medicine due to its governance by a Council separate from the medical doctors’ associations. A second meaning is that the professional body designs its regulations for admission and enforces them in such a way as to effectively exclude non-local professionals from practising. Is it fair to describe the Hong Kong professions covered here as closed shops in this sense? Not entirely.

First, the Immigration Department approves employment visas for non-local professionals to work in Hong Kong. Current Government policy is to welcome talent and professionals from outside Hong Kong to work and settle in Hong Kong. There are no quota or job sector restrictions for the admission of foreign professionals. Successful applicants may bring their dependants (in contrast with the admission schemes for Mainland talents and professionals). From 1997 to 2001, about 16,700 foreign professionals were granted visas to work in Hong Kong each year (Task Force on Population Policy 2003: 25).46 More detailed figures on the number of visas issued to new applications over the period 1996–2004 are shown in Table 2.

Total numbers fluctuate from year to year, probably in response to the business cycle. It would be of interest to know whether the ratio of visas (p.270)

Table 2 Number of Visas Issued under the General Employment Policy 1996–2004

Profession

1996

1997

1998

1999

2000

2001

2002

2003

2004

Investors

277

210

269

289

261

208

312

297

236

Lawyers

118

243

290

227

349

264

225

206

302

Medical & dental professionals

73

64

46

35

56

42

70

60

72

Other professionals and technicians

2,180

4,028

2,949

2,535

4,354

4,079

2,869

3,002

3,451

Administrators, managers and executives

6,775

7,282

6,077

5,692

6,734

6,406

5,623

5,297

7,030

Chefs & professionals in food & beverage

243

162

147

80

60

77

109

259

101

Teachers/Professors

689

974

1,289

1,371

1,513

1750

2,005

1,799

2,087

Sportsmen and entertainers

1,302

1,822

2,548

3,212

3,179

2,848

4,085

3,746

4,764

Others

2,727

1,776

1,305

1,080

2,234

2,846

1,631

1,218

1,130

Total

14,384

16,561

14,920

14,521

18,740

18,520

16,929

15,774

19,173

Source: Immigration Department, unpublished table, for 1996 to 2003. Immigration Department website for 2004.

Notes:

1. Figures exclude foreign domestic helpers, imported workers admitted under the Supplementary Labour Scheme and persons admitted to take up employment under schemes or arrangements catering for Mainland residents.

2. Figures are the number of visas issued to the new applications.

3. An entry visa for employment will normally be valid for three months. Depending on the nature of work or the duration of the relevant employment contract, a successful applicant will normally be granted an entry visa for employment for an initial stay of 12 months upon entry. He/she may apply for extension of stay shortly before his/her limit of stay expires. Such application will be considered only when the applicant continues to meet the eligibility criteria for employment in Hong Kong.

issued to professionals under the general employment policy to the total number of professionals in Hong Kong is rising, stable or declining but this is not possible since the classification system used by the Immigration Department does not match that used by Census and Statistics. It would also be useful to know how many applications there are each year in order to calculate an approval/rejection ratio but the Immigration Department does not provide this information.

Second, most of the professional bodies have mutual recognition agreements with some overseas bodies that make it somewhat easier for members of those overseas bodies to qualify locally (and vice-versa).47

Third, there are procedures in place that involve the passing of examinations or other tests of competence to enable those who have qualified overseas to qualify to practise locally. As a result of Hong Kong’s (p.271) commitment to GATS, these requirements now apply to all qualified non-locals regardless of the country where the original qualification was earned. How many take these examinations and how many pass? Information for medical practitioners and solicitors is shown in Table 3. In the case of Part I of the Licensing Examination for medical practitioners, the test of professional knowledge, the pass rate is extremely low. The pass rate for the Clinical Examination is on average higher but less than half pass. Only in the case of the Proficiency Test in Medical English do a majority pass (except for the year 2002). Relatively few licences are issued each year.48 In the case of law, pass rates are higher though they fluctuate from a high of 70 percent in 1999 to a low of 39 percent in 2003. The numbers taking these examinations have been declining since 1997 in the case of medicine and since 2001 in the case of law. Whether it is because of the perceived difficulty of the examinations, the declining attractiveness of working in Hong Kong or other reasons is worth further study.

One argument for requiring qualified non-local professionals to pass local examinations or other tests of competence is to ensure they have an adequate understanding of local law or other relevant local conditions before they are allowed to practise locally. But is this necessary for all the professions? An Administration paper prepared for the Bills Committee on the Legal Practitioners (Amendment) Bill 1999 suggested it was not when it drew a distinction between legal and medical practitioners with respect to the need for local knowledge. It was considered desirable for foreign law graduates to familiarize themselves with Hong Kong’s local conditions and environment before they are admitted to practise local law. Medicine on the other hand was viewed as having a “common convention in their practice so that their knowledge can be applied universally. They are not required to adapt to local conditions in order to practice.” Dr. Leong Che-hung took strong exception to this remark and asked the Administration to withdraw it, which it later did. He argued that because there are a significant number of medical cases in Hong Kong with no precedence in other places, the need for a good knowledge of local conditions and environment applied equally to medical professionals practising in Hong Kong.49

Challenges Facing the Professions

One of the attractions of Hong Kong as a place to do business is said to be the standards of its professional services (Enright et al 1999: 5). Yet some have claimed that the maintenance of these standards could be at risk due to the declining quality of students undertaking professional training locally in recent years (GML Consulting 2001: 3; Hong Kong Institute of Surveyors (p.272)

Table 3 Results of Qualifying Examinations for Non-Locally Trained Medical Practitioners and Solicitors, selected years

(a) Results of the Licensing Examination for Medicine, 1996–2002

Year

Examination in professional knowledge

Proficiency Test in Medical English (Sept.)

Clinical Examination

Sat

Passed (%)

Sat

Passed (%)

Sat

Passed (%)

Licenses issued

1996

154

11 (7.1)

140

88 (62.9)

40

12 (30.0)

1997

178

13 (7.3)

90

48 (53.3)

27

9 (33.3)

11

1998

165

43 (26.1)

51

43 (84.3)

49

17 (34.7)

6

1999

165

20 (12.1)

57

39 (68.4)

49

9 (18.4)

16

2000

132

13 (9.9)

48

28 (58.3)

42

10 (23.8)

10

2001

124

13 (10.5)

50

37 (74.0)

35

9 (25.7)

10

2002

104

11 (10.6)

31

13 (41.9)

33

13 (39.4)

7

Source: Annual Reports of The Medical Council of Hong Kong.

Note: A small number who took the proficiency test in medical English in March during 1997–2000 are omitted from the table.

(b) Results of the Overseas Lawyers Qualification Examination, 1998–2003

1998

1999

2000

2001

2002

2003

Number of candidates sitting the examination

105

143

205

219

174

129

Number passing

56 (53%)

63 (44%)

109 (53%)

114 (52%)

110 (63%)

50 (39%)

Number failing

49 (47%)

80 (56%)

96 (47%)

105 (48%)

64 (37%)

79 (61%)

Number of jurisdictions represented

13

13

11

12

10

13

Source: Annual Reports, The Law Society of Hong Kong.

Note: The majority of candidates are from Australia, England and Wales, and the USA.

2004: 21; Redmond and Roper 2000: xviii–xix). A proposed short-term solution to this problem is to change immigration policies to “make the entrance of competent people, regardless of nationality or ethnic origin, reasonably straightforward. The advantage for Hong Kong would be a larger international community that interacts with the resident population” (GML Consulting 2001: 3). Although relaxing requirements to practise locally could facilitate the inward migration of professional talent, thus diversifying the pool of available expertise and perhaps spurring improvements in standards of practice, it is doubtful whether professional bodies would welcome this measure because of the potential threat to its members’ economic opportunities.50

(p.273) Others suggest that the self-regulatory professional model that has become institutionalized in Hong Kong is in itself now an obstacle to maintaining and raising the standards of professional practice. The strongest argument along these lines is found in the Harvard consultancy report on Hong Kong’s health care system. It claimed that while the licencing and registration requirements of medical practitioners adhered to international standards, “after the point of entry there is little in place to ensure that practice quality is maintained and enhanced.” The result was highly variable quality in the standard of medical services:

Hong Kong, like many other countries, relies on professional self-regulation to assure the proper conduct of the medical profession. However, what Hong Kong lacks is internal checks and balances among the health professionals, and external oversight and accountability, to assure that the interest of patients are adequately protected. In Hong Kong, while the public depends on the medical profession to self-regulate, medical professionals have been reluctant to criticize or judge one another professionally.

(Harvard Team 1999: 56–59)51

Following submission of the Harvard consultancy report, a number of measures were subsequently considered and implemented to improve quality assurance.52 The medical profession’s growing sensitivity to the need to demonstrate its public accountability is reflected in the formation by the Medical Council in 2001 of a 17-member Working Group on the Reform of the Medical Council to make proposals to reform the Council with a view to restoring public confidence and satisfying public expectations for more transparency, accountability and fairness. Other professional bodies have also introduced measures such as provisions for continuing professional education, more transparent disciplinary procedures or a system of practice reviews to strengthen quality assurance and accountability to stakeholders. These measures may be essential to strengthen confidence in the professions given the public’s growing skepticism of the “good intentions of the elite” but whether they will have a substantive impact in raising standards of professional practice or turn out to amount to little more than politically symbolic acts remains to be seen.

A related criticism sometimes directed at the professions and professional bodies is that they have become increasingly inward looking, more protectionist in their orientation, and lacking in the development of a global perspective. C. Y. Leung (2004) for example has criticized Hong Kong professionals for a lack of entrepreneurial drive and urged that Hong Kong professionals and professional practices “should be less risk-averse, more mobile and more forward-looking” and take advantage “of a short window of opportunity for the professions in Hong Kong for the first and last time” to expand into the Mainland.

(p.274) These propositions about the growing localism and conservatism of professionals and their associations are difficult to assess but several points may be relevant. First, it would not be surprising if professional bodies are slow to respond to a changing environment since organizational inertia is not uncommon in the case of non-market organizations. Second, differences probably exist among (and within) professional bodies in terms of their perceptions of the need to be entrepreneurial or more outwardly focused depending on where members see their opportunities to lie. Those in engineering (or at least some branches of it) may be more likely to view work and career opportunities to be regional and global since that is where employment and consulting opportunities for major infrastructure projects are, hence the importance they attach to negotiating reciprocal recognition agreements. This may also hold true for architects. Those in the medical and legal fields may be more likely to see their opportunities to be primarily local and thus to be more concerned about protecting themselves from external competition. Where professionals are employed may also make a difference. Those who work for the Hong Kong public sector would likely be less interested than those working in the private sector in seeking an expansion of business and work opportunities outside Hong Kong. Third, orientations to external opportunities would probably vary among individual professionals according to their career and life-cycle stage.

One indicator of how outward oriented the professional bodies are is the extent to which they are seeking to take advantage of CEPA (the Closer Economic Partnership Arrangement) to open up cross-border economic opportunities.53 The Hong Kong delegation to the CEPA High Level Conference on Professional Services held in Beijing in February 2004 included, in addition to high level Government officials, representatives from major Hong Kong professional sectors including legal services, medical and dental services, construction-related professional services, real estate agent services, and financial services (including accounting, insurance and securities). Two mutual recognition agreements were signed during the conference. Progress towards mutual recognition with Mainland counterparts has also occurred in other professional fields.54 These examples indicate that some professional bodies are keen on expanding opportunities for their members in the Mainland. Yet the number of professionals keen on taking advantage of these opportunities as they emerge will be limited because, as noted above, a substantial proportion of members of some Hong Kong professional bodies are government employees who would not benefit from a further opening of Mainland access under CEPA.55

The larger issue concerns the value of the self-regulatory regimes. Have they outlived their usefulness as ways of governing the professional communities of practice? Would Hong Kong be better served by bulldozing (p.275) these regimes? For those who believe in the power of markets to expand choices, promote innovation and reduce costs, the answer is obvious. Freidson (2001: 3) describes what implementation of this view would entail for the professions:

Strip away their protective licenses and credentials […] and let there be truly free competition. Open the market to all who wish to offer their services. Consumers will separate the wheat from the chaff in such a market so that the best services and products will emerge at the lowest cost. Where services are complex, requiring the coordination of many specialists and expensive technology, as is the case for medicine, let them be organized by firms whose managers are devoted to efficiency. Then let the firms compete with each other for consumer choice.

But radical change of this sort is unlikely to happen in Hong Kong. For one thing, there appears to be no groundswell of public interest in such a change. A proxy for a consumer movement, the Consumer Council, is opposed to monopolies that limit consumer choice and keep prices artificially high. But its concerns about the professions seem to be focused mainly on the effectiveness and transparency of their complaint handling mechanisms, and the adequacy and truthfulness of information provided to consumers. It does support a competition law and a competition Authority to enforce rules against anti-competitive business practices. Such a law might be used to challenge professional regulations that restrict entry and competition for business. The government responded to this proposal by creating instead the Competition Policy Advisory Group (COMPAG) whose effectiveness in fostering greater competition is debatable.56

Second, it is doubtful if the Government would even consider it worthwhile to try and strip the professional bodies of their self-regulatory powers. It would be no easy task to come up with answers to questions about how standards could be maintained if self-regulatory regimes were demolished or to demonstrate how any alternative would function more effectively than the present system. Moreover, the political cost of attempting to bulldoze the self-regulatory regimes could be very high. The professional communities led by the professional associations and their functional constituency representatives on LegCo could be expected to mobilize to resist fiercely any policy proposals that would strip them of their self-regulatory status.57 But the threat of de-regulation might at least compel the professional communities to articulate “the principles underlying the institutions that organize and support the way they do their work” (Friedson 2001: 3), why they are worth defending against the logics of free market competition and efficiency, and how they contribute to enhancing Hong Kong’s flexible positioning in the regional and global economy.

(p.276) Appendix 1. Selected Employment and Demographic Characteristics of the Professional Stratum

A comparison of the activity status of professionals from the 1991, 1996 and 2001 population censuses shows that over 90 percent have the status of employees (Table A1). The share of employers among professionals has declined while the share of the self-employed has fluctuated, declining from 1991 to 1996 but rising between 1996 and 2001.

Table A1 Distribution of Professionals by Activity Status, 1991, 1996 and 2001

Activity status

1991

1996

2001

No.

%

No.

%

No.

%

Employees

91,706

92.3

142,387

93.9

169,395

94.2

Employers

4,818

4.9

6,584

4.3

6,521

3.6

Self-employed

2,745

2.8

2,571

1.7

3,718

2.1

Unpaid family workers

62

49

191

0.1

Totals

99,331

100.0

151,591

99.9

179,825

100.0

Source: Census and Statistics Department (1992; 1997; 2002)

The main trend in the distribution of professionals by industry is the growth in the number of professionals in financing, insurance, real estate and business services. As a result, their share of all professionals rose from 24.7 percent to 33.6 percent over the decade (Table A2).

Table A2 Distribution of Professionals by Main Industry, 1991, 1996 and 2001

Industry

1991

1996

2001

No.

%

No.

%

No.

%

Manufacturing

7,935

8.0

12,239

8.1

14,029

7.8

Construction

4,128

4.2

7,150

4.7

4,250

2.4

Wholesale, retail and import/export trades, restaurants and hotels

3,093

3.1

5,876

3.9

7,872

4.4

Transport, storage and communication

3,913

3.9

6,963

4.6

10,220

5.7

Financing, insurance, real estate and business services

24,535

24.7

41,999

27.7

60,495

33.6

Community, social and personal services

52,967

53.3

74,597

49.2

80,524

44.8

Others

2,760

2.8

2,767

1.8

2,435

1.4

Total

99,331

100.0

151,591

100.0

179,825

100.1

Source: Same as Table A1.

(p.277) The next two tables show trends in two social attributes of the professional stratum. Table A3 shows the number of females more than doubled over the decade and their share of professionals rose from 31 percent to 36.4 per cent.

Table A3 Distribution of Professionals by Sex

1991

1996

2001

No.

%

No.

%

No.

%

Males

68,516

69.0

100,130

66.1

114,340

63.6

Females

30,815

31.0

51,461

33.9

65,485

36.4

Total

99,331

100.0

151,591

100.0

179,825

100.0

Source: Same as Table A1.

As shown in Table A4, the number of professionals born in Hong Kong doubled between 1991 and 2001. The numbers born in the Mainland and Macao rose from 1991 to 1996 and then remained about the same in 2001. The numbers born elsewhere increased by about 47 percent between 1991 and 1996 but then fell by about 21 percent by 2001. As a result, the share of the Hong Kong born among all professionals rose from 71 percent to 78.4 percent from 1991 to 2001. The proportion born in the Mainland and Macao fell from 15.7 percent to 13.3 percent while the proportion born elsewhere fell even more sharply from 13.3 percent to 8.5 percent.

Table A4 Distribution of Professionals by Place of Birth

Place of birth

1991

1996

2001

No.

%

No.

%

No.

%

Hong Kong

70,528

71.0

109,110

72.0

140,893

78.4

The Mainland of China and Macao

15,603

15.7

23,048

15.2

23,643

13.1

Elsewhere

13,200

13.3

19,433

12.8

15,289

8.5

Total

99,331

100.0

151,591

100.0

179,825

100.0

Source: Same as Table A1.

(p.278) Appendix 2. Estimates of the Number of Professional Bodies

Estimates of the number of professional bodies in Hong Kong vary widely. This is not surprising given the elasticity of the concept of a profession.

The website www.hkprofessionals.org (accessed October 2004) claims that there were more than 200 professional associations in Hong Kong.

A recent study carried out under the auspices of Civic Exchange on organizations/associations in the non-profit sector categorizes them into three main types: professional, industry/business organizations and trade unions (Uebergang 2003). Professional associations are defined as “organisations that aim to promote specific professions and/or professional practices.” Of the estimated 1,308 organizations in this sector, about half were trade unions/job training organizations, 31 percent were trade associations and about 9 percent professional associations (Table A5).58

Table A5 Types and Number of Organizations in the Non-Profit Sector

Category

No. of organizations

Percentage of total

International chambers of commerce

48

4%

Local chambers of commerce

53

4%

Management associations

21

2%

Professional associations

116

9%

Trade associations

410

31%

Trade unions and job-training organizations

660

50%

Estimated overall total in the PB Sector

1,308

100%

Source: Uebergang (2003)

An earlier but more complete mapping of the population of professional associations is the Directory of Professional Associations and Learned Societies in Hong Kong. The 4th edition of this Directory, though outdated, identifies 339 professional associations/learned societies.59 Of these, 114 or about one-third are in the medicine and health sciences field (Table A6). (p.279)

Table A6 Number of Professional Associations/Learned Societies by Field

Sector

Number of associations

Percent

Medicine / Health Sciences and related

114

33.6

Business, Management, Administration, Finance, Insurance

39

11.5

Engineering

27

8.0

Science & technology

27

8.0

Communication / Mass Media / Advertising / Publishing

20

5.9

Education

20

5.9

Social Sciences

18

5.3

Art / Design / Fashion

16

4.7

Accounting

12

3.5

Humanities / Culture

10

2.9

Languages

9

2.7

Transportation

9

2.7

Law

7

2.1

Architecture / Building / City Planning

6

1.8

Hospitality Services / Tourism

5

1.5

Total

339

100.1

Source: Burton, Barry and Nancy Wong compilers 1996. Directory of Professional Associations and Learned Societies in Hong Kong, 4th ed. The Hong Kong Polytechnic University, Pao Yue-Kong Library.

Two other points about these associations/societies are worth noting. First, about 25 percent of the 339 bodies were founded in the 1950s60 and 1960s, 23 percent in the 1970s, 38 percent in the 1980s and 14 percent in the 1990s (up to the mid-1990s). Why a relatively high proportion was founded in the 1980s deserves further study. Second, about 25 percent in the mid-1990s were a branch, section, or chapter of a parent body in the UK or of an international nature.

These professional/learned societies vary in other ways aside from their age, origins and linkages with overseas bodies. They vary for example in their size, scope and resources, the social demography of their membership, their objects, whether they are growing, stable or in decline, whether they have statutory status and their linkages with other local professional bodies.

(p.280) Appendix 3. Selected Features of the Professional Fields

Accountancy

As of March 2005, there were 1,937 accounting and auditing firms employing 14,082 persons and 1,829 bookkeeping and general accounting firms employing 6,689 persons (Census and Statistics Dept [C&S] 2005a: 12). CPA firms provide such services as statutory audit services, tax advisory, company listing, corporate finance, company secretarial, liquidation and due diligence services as well as business advisory services to clients. Non-CPA firms offer services such as bookkeeping, general accounting services, year-end financial reporting, tax filing and company secretarial work. The field is dominated by the “Big Four” accounting firms that provide audit services for the vast majority of Hong Kong’s listed companies. Smaller accounting firms serve mainly the non-listed local companies (Trade Development Council [TDC] 2005c).

The number of registered certified public accountants increased from 8,415 in 1994 to 22,836 in 2004 (C&S 2005c: 170). As of October 2004, about 15 percent of HKICPA certified public accountants held Practising Certificates. About 45 percent worked in industry and commerce, 28 percent in public practice and 8 percent in the public sector. By type of practice, the number of firms grew from 1,017 in 2000 to 1,117 in 2004 while the number of corporate practices grew from 73 to 163 during this period (HKICPA 2004: 21–23).

There are ten different accounting associations in Hong Kong (TDC 2005b). Of these, the HKICPA is the only statutory licencing body for accountants in Hong Kong and is responsible for regulation of the accountancy profession. The objects of the HKICPA found in section 7 of the Professional Accountants Ordinance include, inter alia, regulation of the practice of the accountancy profession, encouraging the study of accountancy, representing the views of the profession and preserving the profession’s integrity and status. HKICPA’s responsibilities include standard setting in the areas of ethics, audit and assurance, and financial reporting, monitoring compliance with these standards, dealing with complaints regarding the ethical and professional conduct of members, member practices and students, conducting investigations where there is reasonable suspicion or belief that a member has committed a disciplinable offence, hearing formal complaints and making disciplinary orders, registering qualified persons as CPA/CPA(Practising), and setting and conducting professional examinations.

(p.281) The Medical Field

Medical services are provided to the public by individual medical practitioners and by a variety of organizations including hospitals, screening centres, nursing homes, medical scheme administrators, insurance companies, health administration companies, managed care companies and counseling centres. Of the 75,963 persons employed in medical and health establishments in March 2005, about 72 percent worked in hospitals (Table A7).

Table A7 Medical and Health: Establishments & Employment as of March 2005

Establishments

Persons engaged

Hospitals

13

54,630

Clinics

494

3,202

Private medical practitioners

2,572

8,832

Dentists

1,402

3,923

Medical and X-ray laboratories

221

1,585

Dental laboratories

165

537

Medical, dental and X-ray laboratories

386

2,122

Veterinary services

103

620

Medical services, n.e.c.

651

2,634

Health and veterinary services, n.e.c.

754

3,254

Total

5,261

75,963

Source: Census and Statistics Department (2005c).

There were 11,242 doctors with full registration in 2004 (Information Services Dept. 2005: 528). Of the 5,276 doctors (out of 9,905 with full registration covered) who responded to the 2003 Health Manpower Survey, 47.3 percent worked for the Hospital Authority and 39.1 percent in theprivate sector, with the rest working in the Government, and the academic and subvented sector. Among doctors working in the private sector, 75.3 percent were in solo practice followed by group practice (16.5 percent) and private hospitals (8.2 percent) (Department of Health 2005).

Regulation of Medical and Health Personnel

Medical and health personnel fall into three categories depending on their regulatory status (Grant and Yuen 1998: 129–58). Medical practitioners, i.e. doctors and surgeons, were the first to come under statutory regulation with the enactment of the Medical Registration Ordinance in 1957. Dentists became regulated under the Dental Registration Ordinance enacted in 1959.

(p.282) The Supplementary Medical Profession Ordinance of 1980 provides for registration, discipline and better control of persons engaged in occupations and professions supplementary to medicine. The Supplementary Medical Professions Council, established under the Ordinance, initiated the process of registration of the supplementary professions. The registration of five professions—medical laboratory technologist, occupational therapist, optometrist, physiotherapist and radiographer—was completed in 1999.

The third category is comprised of 15 health care professions whose practice is not subject to a statutorily-based registration/enrolment and disciplinary system.

The Medical Council of Hong Kong

The Medical Council is the main regulatory body for doctors and surgeons. It is not a professional association but it is comprised predominantly of medical professionals. Its powers include:

  1. registration of medical practitioners.

  2. setting the Licensing Examination. (This replaced the Licentiate Scheme on September 1, 1996.) After passing the Licensing Examination and completion of the prescribed period of internship, a person will be awarded a certificate of experience by the Medical Council and be accepted for full registration with the Medical Council.

  3. establishing a Preliminary Investigation Committee to make preliminary investigations into complaints and make recommendations.

  4. taking disciplinary action if after due inquiry into any case referred to it by relevant Committees of the Council there is evidence that a registered medical practitioner has been guilty of misconduct in any professional respect.

  5. determining on recommendation of the Hong Kong Academy of Medicine the specialties under which names of registered medical practitioners may be included in the Specialist Register.

Other Professional Bodies

As noted in Appendix 2, medical and health is the most densely organized field. The Hong Kong Medical Association, founded in 1920 as the Hong Kong Chinese Medical Association, brings together all medical practitioners practising in, and serving the people of, Hong Kong. Its objective is to promote the welfare of the medical profession and the health of the public. With a membership of some 5,000 from all sectors of medical practice, it (p.283) provides a collective voice for its members and aims to keep its members abreast of medical ethics and issues around the world.

The Federation of Medical Societies of Hong Kong, founded in 1965, is comprised of medical, dental and allied health professional societies. Its mission is to promote high standards of practice by medical and allied health professionals in Hong Kong and to promote the welfare of and cooperation among all specialties it encompasses. Its membership has grown from the original 12 bodies to the present 107 (66 full and 41 associate members) from the following categories: bodies representing the interest of their respective professions; specialty societies; subspecialty societies; procedural sub-specialties; health administrative groups; nurses and midwives; therapists (physical, occupational and others); pharmacologists and the pharmaceutical industry; medical technologists; nutritionists; medical legal specialties; and interest groups and fraternity groups within the profession.

The Legal Field

The legal profession in Hong Kong is comprised of solicitors, barristers, foreign lawyers and notaries public, all of whom are regulated by the Legal Practitioners’ Ordinance. The providers of legal services also include the Hong Kong Government, and the Courts (including tribunals). Legal services are provided outside the legal profession and the Hong Kong Government, e.g., (a) advisory within other professional firms as part of the professional services offered, e.g. the tax departments of accounting firms, construction claims consultancies; (b) in-house counsel, e.g. for statutory authorities in Hong Kong, (c) compliance officers (e.g. in investment fund management companies); legal specialists (legal departments within banks and other business organizations; and (e) quasi-legal areas, e.g. company secretarial work (GML Consulting 2001: 10–17).

Solicitors commonly undertake work in conveyancing transactions, probate, the preparation of commercial and financial documentation, and litigation. They have the right to appear in the Magistracy and the District Court and appeals to the High Court from magistrates’ decisions but are not entitled to conduct High Court trials or appear before the Court of Final Appeal in open court.

Barristers specialize in advocacy and litigation and have unlimited rights of audience in all courts and tribunals. A practising barrister is one who has been admitted to practise in Hong Kong and who is entitled and holds himself out as willing to appear in a court on behalf of a client or to give legal advice or services to a client but is not an employed barrister. (p.284) Practising barristers need to be instructed by solicitors in order to perform services to clients with certain exemptions. An employed barrister is a barrister who is engaged to provide legal advice or services for his employer under a contract of employment.

As of May 2004, there were 5,233 solicitors with a current Practising Certificate of whom 60 percent were male and 81 percent ethnic Chinese. Of these, 1,857 were partners or sole practitioners, 2,606 were employed as assistants or working as consultants, and 770 were employed by private business or the Government. The 4,463 private practice solicitors work in 667 firms. Of these firms, 275 or 41 percent were sole practitioners. The 35 foreign law firms employed 236 foreign lawyers. 364 foreign lawyers were employed in local law firms. (www.hklawsoc.org.hk accessed 18 October 2004). As of March 2004, there were 882 practising barristers (C&S 2005b: 170).

Professional Bodies

The Law Society of Hong Kong, the professional association for solicitors in Hong Kong, was incorporated in 1907 as a limited company. The aims of the Society in its Memorandum and Articles of Association include:

  1. to promote high standards of work and ethical practice in the profession

  2. to ensure compliance with the law and rules affecting solicitors

  3. to guide solicitors on matters relating to professional practice matters and to help them develop their practices

  4. to represent the views of the profession to the government and others

  5. to provide services to its members

The Legal Practitioners Ordinance grants statutory duties and powers to the Law Society including (a) a certifying role in the admission procedures; (b) the issuing of annual practising certificates and certificates of registrationto Hong Kong solicitors, foreign lawyers and foreign law firms; (c) investigation and referral of allegations of professional misconduct to the Solicitors Disciplinary Tribunal; (d) intervention in a solicitor’s practice in cases of dishonesty, undue delay, bankruptcy, death or other causes; and (e) establishing rules for the conduct and education of solicitors and trainee solicitors.

The Bar Association of Hong Kong was founded in 1949 and is registered under the Societies Ordinance. Its objects include maintaining the honour and independence of the Bar, improving the administration of justice in Hong Kong, the prescribing of rules of professional conduct, discipline and etiquette, and furthering good relations and understanding within the legal profession.

(p.285) Under the Legal Practitioners Ordinance, the Bar Association with approval of the Chief Justice may make rules: (a) regarding the professional practice, conduct and discipline of barristers and pupils, (b) regulating the issuing of practising certificates to barristers and employed barrister’s certificates to employed barristers, (c) providing for any continuing legal education or training that must be undertaken by barristers and pupils and the consequences of failing to do so, (d) providing for the conduct of an inquiry and investigation by a Barristers Disciplinary Tribunal, (e) requiring a barrister or pupil whose conduct has been established to the satisfaction of the Bar Council to amount to a breach of proper professional standards to pay the Bar Council’s costs of investigating the conduct which resulted in the order, (f) regulating the serving of pupilage and (g) governing the admission of persons on the basis of qualifications acquired outside HK.

Architecture

There were 269 establishments in architectural design employing 2,303 persons in March 2005. Architectures also work in multi-disciplinary practices. In March 2005, there were 408 establishments employing 6,410 persons involving architecture in combination with disciplines of engineering and surveying services related to construction and real estate (C&S 2005a: 12–13). About half of the business of the architectural profession comes from the residential sector with the other half from the commercial, institutional and industrial sectors. Most work come from property developers and the government including the Housing Authority, Housing Society and Hospital Authority. For large landmark buildings, Hong Kong companies sometimes team up with foreign based firms to jointly bid for a job where specific expertise is required (TDC 2005b).

The Hong Kong Institute of Architects (HKIA) and Architects Registration Board

HKIA was founded in 1956 as The Hong Kong Society of Architects and adopted its present name in 1972. HKIA began to offer its own qualifying examinations from 1974 and later began to seek statutory recognition for its role as a qualifying association. In the mid-1980s, members representing the architecture profession initiated negotiations with the then Lands and Works Department over the existing list of Authorised Persons under the Buildings Ordinance that included, besides architects, civil engineers and (p.286) surveyors. Representatives from the engineering and surveying professional bodies were subsequently invited to participate in the negotiations. In late 1987, agreement was reached that (1) separate registration boards should be formed for architects, engineers, planners and surveyors distinct from the professional bodies and having full-time Registrars, (2) these boards should have a statutory basis to enhance consumer protection and public safety, (3) Government would be represented on the Boards by non-members of the profession concerned, but it was stressed that Government approved the principle of professional self-regulation, (4) membership of the registration boards would not be restricted to membership of the corresponding professional body, i.e., it should not operate as a closed shop (Engineering Registration Board, accessed October 2004). Bills were presented to LegCo in the early 1990s to establish registration boards for architecture as well as surveying and engineering and to incorporate the relevant professional bodies.

The objects of the HKIA under its 1990 Incorporation Ordinance include (a) to promote the general advancement of architecture, (b) to raise the standard of architecture in Hong Kong and the standard of professional architectural services, (c) to maintain the integrity and status of and discourage dishonourable conduct and practices in the architectural profession, (d) to represent the views of the architectural profession to the public and the Government, (e) to apply the collective expertise of members of the Institute in an advisory role to the Government and the building industry, and (f) to conduct examinations to ascertain whether persons are qualified to be accorded professional recognition by the Institute. All practitioners have to register with the Hong Kong Institute of Architects. As of the end of March 2004, there were 2,022 registered architects (C&S 2005b: 171).

The functions of the Architects Registration Board include establishing and maintaining a register of registered architects, setting and reviewing the qualifications standards of registration, advising the Government and the HKIA on registration matters, examining and verifying the qualifications of persons who apply for registration, handling applications for registration and renewal of registration, and dealing with disciplinary offences.

Surveying

The real estate surveying, valuation and consultancy industry had 466 establishments employing 3,692 persons in March 2005 (C&S 2005a). Surveyors also work in multi-disciplinary practices with architectures and engineers. In the past many local surveying firms partnered with international firms, mainly from the UK, to bid for large international (p.287) projects. In recent years, some local players have developed the capability to provide services of international standards on their own. Most newly established surveying firms seek to provide a range of consultancy services to their clients including development consultancy, project management, property consultancy to interior design and fitting out work (TDC 2005a).

Services provided by the surveying profession are classified into four major categories: general practice, quantity surveying, building surveying and land surveying. General practice surveyors are concerned with the measurement, management, development and valuation of land, property and buildings, with the negotiation of sales and lettings and with the financial aspects of investment in property. Services offered include valuation, development consultancy, negotiating on behalf of clients for purchase, sale or lease of all types of lands and buildings, and property management. Quantity surveyors are construction cost consultants. Major employers of quantity surveyors are private developers, governments and related bodies, contractors, mining and petrochemical companies and insurance companies. Building surveyors advise clients on construction and economics of buildings, law related to buildings, building maintenance and project management. Land surveyors are involved in cadastral surveying, engineering surveying, geodetic surveying, topographic surveying and digital mapping, photogrammetric surveying and hydrographic surveying (TDC 2005a).

The Hong Kong Institute of Surveyors (HKIS) and Surveyors Registration Board

The first body formed by surveyors in Hong Kong was a Hong Kong chapter of The Royal Institution of Chartered Surveyors (RICS) that was founded in 1929. Until 1950, most qualified surveyors were recruited from the UK and were members of the RICS. In the 1960s, the Hong Kong Polytechnic started to offer diploma courses in surveying (HKIS 2005). In 1976, a group of local and expatriate professional land surveyors founded the Hong Kong Institute of Land Surveyors (HKILS). In 1978, the Hong Kong Branch of RICS set up a working party to examine the possibility of establishing a local institute of surveyors, leading eventually to the founding of the HKIS in 1984 which was registered under the Societies Ordinance. HKIS was incorporated by the Hong Kong Institute of Surveyors Ordinance passed in 1990. In 1991, HKILS amalgamated with HKIS. The Hong Kong Branch of RICS (Hong Kong Branch) dissolved on 31 August 1997, leaving the Hong Kong Institute of Surveyors as the only professional body representing the surveying profession in Hong Kong. In 2004, RICS (p.288) re-established a local Hong Kong branch (HKIS 1999; HKIS 2005 www.hkis.org.hk; “RICS Returns”, The Standard 2004).

HKIS objects include (a) to secure the advancement and facilitate the acquisition of that knowledge and expertise which constitutes the profession of a surveyor,61 (b) to promote, support and protect the character, status and interests of surveyors in Hong Kong, and (c) to maintain and promote the usefulness of the profession of surveyors for the public advantage. As of August 2005, HKIS had 3,476 Members and another 451 Fellows. Of these, about 41 per cent were in the Quantity Surveying division, 36 percent in General Practice, 17 percent in Building Surveying and 5 percent in Land Surveying (www.hkis.org.hk/hkis/html/membership_statistics).

The Surveyors Registration Ordinance was passed in 1991 to set up a Surveyors Registration Board (SRB) to administer the registration of surveyors. The functions of the SRB are similar to those of the registration boards for Architect and Engineering. It also designates divisions within the surveying profession under which a person may be registered.

Engineering

Engineering services can be divided into construction-related and non-construction related sectors. The former includes civil, structural, building, electrical and mechanical engineering services. The latter includes electrical and electronic design and engineering services, mechanical and chemical, industrial and marine, computer hardware and other commercial research and development testing services. It is estimated that about 20,000 qualified engineers are practising in Hong Kong of whom about half work in the construction industry (www.hkprofessionals.org).

In March 2005, in the construction related sector, there were 89 establishments employing 485 persons in structural engineering, 52 firms employing 339 person in building services engineering, and 159 establishments employing 3,114 persons in civil and geotechnical engineering (C&S 2005a: 12–13). In addition, some engineers work in multidisciplinary practices with architects and surveyors. Others work for the government and utilities companies. Some are involved in research and engineering education and some work with international consultancy firms (TDC 2005a).

The Hong Kong Institution of Engineers (HKIE)

HKIE is the only statutory qualifying body for engineers in Hong Kong. It encompasses engineers of 17 different disciplines and aims to enhance their (p.289) common good and to ensure that their practice maintains a high professional and ethical standard. It sets standards for the training and admission of engineers and makes rules governing the conduct of its members (HKIE 2005). First established as the Engineering Society of Hong Kong in 1947, it merged in 1972 with the Hong Kong Joint Group of the Institutions of Civil, Mechanical and Electrical Engineers of London. In 1975, it was incorporated by government ordinance to set professional standards and to encourage professional development for local engineers. In 1982, the HKIE qualification was recognized for government service appointments.

As of March 2005, HKIE had 9,834 corporate members (836 Fellows and 9,898 Members). The total membership including companions, associate members, graduate members, student members and affiliates was 19,224 (HKIE 2005). HKIE has relationships and agreements on mutual recognition of qualifications with a number of overseas engineering institutions.

The Engineers Registration Board

The Engineers Registration Board was established under The Engineers Registration Ordinance enacted in 1990 to establish the professional status of engineers practising in various disciplines, and to bring under regulatory and disciplinary control those professionals responsible for safety and economic matters. A person who is on the register may use the title “Registered Professional Engineer,” or “R.P.E.,” with reference to the discipline(s). Under the Ordinance, the qualification for registration is closely linked with the qualification standard for membership of the HKIE but HKIE membership is not a prerequisite for registration. Membership of an engineering body which is accepted by the Board as being of a standard not less than that of a Member of the HKIE within a discipline may also be acceptable, provided that other conditions are also met including that the applicant is ordinarily resident in Hong Kong and has at least one year’s relevant post-qualification professional experience in Hong Kong.

In some circumstances, the Government may require (by law or other means), or recommend, that certain duties be carried out only by Registered Professional Engineers in appropriate disciplines. Most activities that are regulated are related to safety aspects of buildings, slopes, machines, equipment, etc. Testing and certification of certain activities may require a particular engineering skill or expertise (e.g., safety of suspended working platforms, lifting appliances and lifting gears, buildings and scopes). Registration is required to be eligible to apply for listing as an Authorised Person, Registered Structural Engineer and Registered Geotechnical Engineer (which went into effect in 2004) under the Buildings Ordinance.

(p.290) Appendix 4. Progress towards Mutual Recognition of Qualification between Hong Kong Professional Bodies and Their Mainland Counterparts

Under the mutual agreement between the HKIA and the National Administration Board of Architectural Registration in the Mainland, each institution conducts a two-day training session for applicants from the other side. Each applicant must pass a simple assessment before obtaining recognition from the other side. For the first two years, the quota of mutual recognition for each place is 120 applicants per year. Applicants must have practised for at least five years after attaining their original qualification before applying for mutual recognition. Once qualification has been obtained, Hong Kong architects become Class I registered architects and can practise in architect firms in the Mainland or set up wholly owned architect firms according to regulations framed by CEPA and the Ministries. Those from the Mainland who qualify are awarded HKIA qualifications (http://www.hkia.net). This scheme subsequently attracted more than 400 applicants from Hong Kong and the Mainland. After screening, 120 candidates from each jurisdiction were shortlisted to participate in the first training and assessment in Shenzhen. Ninety-nine Mainland and 106 local architects successfully passed the first mutual recognition assessment.

The second agreement is a draft mutual recognition agreement for structural engineers between the HKIE and the National Administration Board of Engineering Registration (Structural). Full Agreement was expected to be forthcoming with the first batch of structural engineers receiving their qualification towards the end of 2004. (“CEPA High Level Conference on Professional Services held in Beijing” Hong Kong Government Press Release. (http://www.info.gov.hk/gia/general/200402/17/0217199.htm)).

Progress on mutual recognition of qualifications has also been made in the case of property valuers with 97 Hong Kong professionals certified as real estate valuators in the Mainland as of August 2004 (http://www.chamber.org.hk/info/the_bulletin/2004/august04/ceu.asp).

It was announced in August 2004 that after months of discussion between the Hong Kong Society of Accountants (HKSA) and the Ministry of Finance of the People’s Republic of China (MOF) and the Chinese Institute of Certified Public Accountants (CICPA) via the MOF/CICPA/HKSA Joint Task Force, an agreement on Mutual Examination Paper Exemptions for Mainland and Hong Kong Accountants had been signed between the MOF and their Hong Kong counterparts, the Financial Services and the Treasury Bureau of the HKSAR Government, alongside the signing of the Closer (p.291) Economic Partnership Arrangement (CEPA) II agreement in Beijing. The agreement provides for persons who have passed the PRC CPA Uniform Examination to be exempted from two subjects: Module B Financial Management and Module C Auditing and Information Management of the HKICPA Qualification Programme (QP); and for persons who have passed the QP to be exempted from two subjects: Financial Cost Management and Auditing of the PRC CPA Uniform Examination.

Notes:

(1) Whether or not the professions develop in this way depends crucially on how much autonomy the state grants them. See Gu (2001: 165–72) for a discussion of variations in state-profession relations and their implications for professional autonomy. I am grateful to Eva Hung for bringing this article to my attention.

(2) See Appendix 1 for additional information on the employment and demographic characteristics of the professional stratum. A main source of supply for the professions has become graduates from UGC-funded undergraduate programmes.

(3) But see Rossides (1998) for a jaundiced view of the contribution of the professions.

(4) For example, the Hong Kong General Chamber of Commerce founded the Hong Kong Coalition of Service Industries (HKCSI) in 1990 with the objective of promoting the continuing development and competitiveness of Hong Kong’s (p.429) service industries including professional services. A Government Task Force on Services Promotion was established in 1995. In early 2002, the Government launched the Professional Services Development Assistance Scheme (PSDAS) to support projects to enhance the competitiveness of Hong Kong’s professional service sector.

(5) This is not to say that the professions have been ignored. Chan (1991: 65–68), Lethbridge (1978: 20) and Sinn (2003) have brief discussions of professionals in prewar Hong Kong. Professional flight in the late 1980s and early 1990s once attracted academic interest (Kwong 1990, Skeldon 1995). Academics have analyzed participation by professionals in Hong Kong’s governance structure and their orientations towards democratization (e.g., Davies 1989, Sing 2004, So 1999). Discussions of Hong Kong’s changing class structure refer to the professional stratum as part of an expanding new middle class (e.g., Lui 1997). There are accounts of the development of professional fields (e.g., Sweeting 2004), features of these fields (e.g., Sandor and Wilkinson 1996) and the contribution of business services providers to Hong Kong’s economy (e.g., Enright et al 1999).

(6) The term protectionism has analytically distinct meanings including practices restricting occupational competition, a tolerance of inept practitioners, and the defense of a profession’s control over a task domain from encroachment by other occupational groups. Another possible meaning is resistance to outsider scrutiny of performance. My main focus in this chapter is on the first of these meanings.

(7) An attachment to the Paper for the Legislative Council, House Committee meeting on 28 May 2004 (Report of the Bills Committee on Inland Revenue (Amendment) Bill 2000 LC Paper No. CB(1)1927/03–04), lists 37 statutory bodies established by legislation to register and recognize professional qualifications and status or grant permits or licences for practising in a profession, trade or occupation. This list excludes licencing requirements of bodies such as the Securities and Futures Commission, which specifies nine regulated activities for which SFC licencing is required.

(8) Appendix 2 reviews estimates of the number of professional bodies in Hong Kong.

(9) My interviewees included officers and/or staff of the relevant professional associations. I also interviewed academics and other experts knowledgeable about the professions generally or about specific professions. I am most grateful to these interviewees for their cooperation.

(10) There are alternative paths to student registration. Many will be holders of a recognized local or overseas accountancy degree. Local graduates of approved accountancy programmes come from non-UGC funded as well as UGC-funded programmes. There are also provisions for non-accountancy degree graduates (completion of a Conversion Programme) and sub-degree holders who have to obtain the Hong Kong Association of Accounting Technicians (HKAAT) qualification and complete a Foundation Programme.

(11) HKICPA has had mutual recognition agreements with a number of overseas accountancy bodies including the ACCA. In conjunction with its recent process of rebranding, the HKICPA decided that any renewal of mutual recognition (p.430) agreements expiring on 30 June 2005, would be subject to assessment of whether qualifying criteria of these overseas bodies match those of the HKICPA Qualification Programme. On 30 June 2005, the existing unilateral recognition of the qualification of these overseas accountancy bodies ceased.

(12) Only holders of a practising certificate or a corporate practice/firm registered under the Professional Accountants Ordinance can hold appointment or render services as an auditor of a company under the Companies Ordinance.

(13) The HKICPA’s Code of Ethics for Professional Accountants states that a member is entitled to charge his client an agreed fee for his services, or in the absence of any agreement a fee calculated by reference to the custom of the profession.

(14) The rules specified the maximum size of signboards only for individual doctors so that group practices were not covered. It was reported in August 2004 that the Medical Council was proposing limits for the size of signboards for group practices and had sent them to major doctors’ groups for comment. The proposal is that “shared” signboards for a group practice with two doctors be limited to 20 square feet, and for three or more doctors to 30 square feet. The Ethics Committee chairman is reported to have said that doctors “find that they are not on a level-playing field with those big medical groups” that had put up big signboards (“It”s a Sign of the Times”, South China Morning Post 2004).

(15) The Medical Council statistics on disciplinary cases it handled from 1999 to 2003 shows that of 350 complaints received in 2003, 68 involved advertising/ canvassing (Medical Council 2004). Certain restrictions in the code of professional conduct for medical practitioners have recently been challenged by the assistant medical superintendent of the Hong Kong Sanatorium and Hospital who initiated a judicial review. Justice Anselmo Reyes ruled in August 2006 that certain passages in the Medical Council’s code on professional conduct violated free speech provisions of the Basic Law and Article 16 of the Hong Kong Bill of Rights Ordinance but he did not overturn the rules (“Advert Ban”, South China Morning Post 2006).

(16) The Attorney-General’s 1995 Consultation Paper on Legal Services recommended amending the criteria for admission as a barrister to bring them in line with the General Agreement on Trade in Services (GATS).

(17) Foreign lawyers cannot enter into partnerships with a Hong Kong solicitor to practise Hong Kong law, but firms in association are permitted to share premises, personnel and facilities.

(18) Lawyers can be held personally liable for negligence by a fellow partner. It was reported in 2004 that solicitors and accountants had been lobbying the government to allow a change in partnership structures that would limit their liability due to “growing anxiety in the professions that just one ‘mega-lawsuit’ could wipe out entire practices” (“Lawyer, accountants”, South China Morning Post 2004).

(19) The exceptions currently include Instructions from Patent and Trade Mark Agents; Instructions from the Duty Lawyer Service; provision of advisory service at centres of the Duty Lawyer Service; the Scheme for Pro Bono work; advisory service to the Medical, Dental and Chiropractors’ Councils and the Veterinary Surgeons Board and other tribunals or bodies exercising judicial or quasi-judicial (p.431) functions as established by statute and the Licensing Appeals Board Instructions from foreign lawyers.

(20) In September 1996, in an attempt to fend off the abolition of scale fees for conveyancing, the Law Society proposed that new scale fees should be fixed by the Costs Committee at a level 30 percent below the existing level and including a cap on the fees depending on the classification of the property (Sandor and Wilkinson 1996: viii–lix). When the Legal Services Legislation (Miscellaneous Amendments) was introduced into LegCo that included a provision to render the conveyancing scale fee non-binding, the Law Society initiated an amendment which would in effect have prevented contracting out of the mandatory scale. This proposal was defeated on the casting vote of the President of LegCo.

(21) The Law Society has however set up a Working Party on Conditional and Contingency Fees to study the systems in civil disputes resolution in other jurisdictions and to consider their suitability for Hong Kong (The Law Society of Hong Kong 2003: 61).

(22) Issues relating to the cost of legal services were considered by the Chief Justice’s Working Party on Civil Justice Reform (2003: 376–95). Their Interim Report had four proposals to increase costs transparency, three of which are noted here. The first proposal was that rules should be adopted requiring solicitors and barristers (1) to disclose to their clients full information as to the basis on which they will be charged fees; (2) to provide them with the best available estimates as to the amount of fees they are likely to be charged for litigation; and (3) to update or revise such information and estimates if they change, with reasons given for any such changes. The second proposal was to take steps to ensure that the public is given access to information regarding barristers and solicitors relevant to the choice of legal representation in connection with litigation including information on fees, expertise and experience to be made available by the professional associations concerned or in some other manner. The third proposal was that steps be taken to compile benchmark costs for use in Hong Kong. After considering responses to the Interim Report, the Working Party recommended adoption of the first proposal. The Working Party noted there were “strongly divergent views” regarding the second proposal and recommended that further consultation should be undertaken by the Chief Justice on whether rules permitting the publication by barristers of information about their fees are desirable. With regard to compiling benchmark costs, the Working Party recommended a “less ambitious course,” of collating and publishing information on fees and costs derived from such sources as awards made on taxation.

(23) Practice promotion is defined as the marketing by whatever method of that solicitor, his practice or his firm or the professional legal services offered by him or it. It includes any exposure, whether or not paid for, in any public medium, the issue of any publication or communication (including orally) in any medium to any client, prospective client or the public generally which has the character of an advertisement or promotional material, any public appearance, and any contact with a prospective client initiated by or on behalf of the solicitor. Sandor and Wilkinson (1996: 69) note the change was influenced (p.432) by developments in England and comment that “It is far more liberal than any previous regime in Hong Kong, although it is not as free as in some other jurisdictions.”

(24) The 1995 Consultation Paper on Legal Services noted that the legal profession, like many other professions, had traditionally placed restrictions through practice rules or codes of conduct on the freedom of its members to inform the public about the services they offer and the prices they charge. It recommended that the only restriction on advertising and promotion by lawyers should be that it must not be false, misleading or deceptive. Restrictions based on subjective criteria should be removed.

(25) Also deleted was reference to practice promotion which is inappropriate “to the best interests of the solicitors’ profession.” Law Society of Hong Kong, Circular 314/96, 25 November 1996.

(26) Practice promotion shall not (a) be likely to mislead or deceive, whether by inclusion or omission; (b) contain any adverse remark or implication concerning any other solicitor or solicitors, in particular in any comparison of services, practice or fees; (c) make any claim or imply that the solicitor is, or that his practice is or includes an expert in any field of practice or generally. It is permissible, however, to refer to his knowledge, qualifications, experience or area(s) of practice provided that such a claim can be justified; (d) identify any client or any item of any client’s business without the prior written consent of the client; (e) be defamatory; (f) refer to the solicitor’s success rate; (g) imply that a solicitor can obtain results by improper means; (h) be intrusive, offensive or otherwise inappropriate having regard, among other things, to the manner, medium or frequency of approach, or surrounding circumstances; (i) be calculated or likely to take advantage of the weak or weakened mental, physical or emotional state of the recipient or intended recipient; (j) take place in or in the immediate vicinity of a court, police station or place of detention in relation to a person who has been or may be charged with, or has been convicted of, any offence; (k) be directed at a person who has made known a desire not to be contacted; (l) be in any manner which may reasonably be regarded as having the effect of bringing the solicitors’ profession into disrepute; (m) be inappropriate having regard to the best interests of the public; (n) breach any other code of advertising practice for the time being in force which applies to solicitors. There are exceptions when such advertising is permitted, e.g. an appropriate nameplate outside the premises at which a firm of solicitors practices, the name and/or logo of a firm of solicitors on clothing worn at a sporting event by members of a team entered by the firm and their bona fide organizers and officials.

(27) There are however special rules relating to advertisement on the occasion of change of professional chambers, return to practice or opening a new set of chambers.

(28) HKIA’s accredited/recognized school list includes the Master of Architecture of The University of Hong Kong and The Chinese University of Hong Kong, the National Architectural Accrediting Board (USA), the Commonwealth Association of Architects and The National Board of Architectural Accreditation of the PRC.

(p.433) (29) The Hong Kong Institute of Architects, The Code of Professional Conduct as revised 18 January 1995 and Agreement between Client & Architect & Scale of Professional Changes, revised ed. September 2000.

(30) The Hong Kong Institute of Architects, Agreement between Client & Architect & Scale of Professional Charges, 1998 revised September 2000.

(31) The stages are: A—inception; B—feasibility studies; C—outline schematic proposals; D—project design; E—contract documents, F—building construction.

(32) The fees and charges are seen as minima since it is recognized that fee schedules may not be suitable in all circumstances, in which case higher fees and charges may be agreed between the client and architect when the architect is commissioned. There are also minimum hourly rates (which vary depending on status) and minimum charges specified for some other services. If for any reason partial services only are performed, a different scale applies depending on the type of building

(33) They can apply to become a member of the Institute under the cooperation agreement with The Royal Institution of Chartered Surveyors (UK), and reciprocity Agreements with the Australian Property Institute (since 1994), The Singapore Institute of Surveyors and Valuers (since 1997), New Zealand Property Institute (since 2003), and China Institute of Real Estate Appraisers (since 2003). Before members of these bodies can become corporate members of the HKIS they must pass a written paper on “Legal Framework and Cadastral Systems,” a professional interview and have one year of relevant local experience (except that a member of RICS does not have to wait one year).

(34) The nature of the Work Stages is however defined differently than those for architecture. See Professional Charges for Building Surveying Services (1998), Building Surveying Division of HKIS, adopted with permission of a similar publication by RICS, UK.

(35) In the case of a cadastral survey (boundary determination, boundary re-establishment, boundary setting out, rectification, etc.), the scales vary for a Field Survey Party (comprising one surveyor, three survey chainmen or workmen and the driver) ($10,120 per day) and a small house survey ($14,630 for a single house, $6,820 per house if a block of houses). Office work including the data analysis and processing, computation and plan production are charged at lower daily rates (e.g. $6,430 per day for office work related to a cadastral survey) Scale of Professional Charges for Land Surveying Services in Hong Kong (1996, 3rd ed), prepared jointly by Land Surveying Division of HKIS and the Land Surveying Committee of RICS (Hong Kong Branch).

(36) Inclusive Scale of Professional Charges for Quantity Surveying Services for Building Workers in Hong Kong (1994, 1st ed), jointly with RICS (Hong Kong Branch).

(37) Scale of Professional Charges for General Practice Services in Hong Kong (1995). In October 2004, HKIS is in the process of revising scales for GP, LS and QS. Communication from Secretary-General, HKIS, 27 October 2004.

(38) Under the Ordinance, the qualification for registration is closely linked with the qualification standard for membership of the HKIE but HKIE membership is not a prerequisite for registration. Membership of an engineering body which is (p.434) accepted by the Board as being of a standard not less than that of a Member of the HKIE within a discipline may also be acceptable, provided that other conditions are also met including that the applicant is ordinarily resident in Hong Kong and at least one year relevant post-qualification professional experience in Hong Kong.

(39) Only two persons have qualified through this route since it was added in 1996.

(40) For example, one of the objects of the HKIE is “to discourage dishonourable conduct and practices arising in the engineering profession.” One object of the HKIA is “to maintain the integrity and status of and discourage dishonourable conduct and practices in the architectural profession” and for the HKICPA to “discourage dishonourable conduct and practices by professional accountants.” One of the aims of the Bar Association is the “prescribing of rules of professional conduct, discipline and etiquette.” The aims of the Law society include to “promote high standards of work and ethical practice in the profession” and to “ensure compliance with the law and rules affecting solicitors.”

(41) The creation of a Medical Council for regulating medical practitioners followed the British model.

(42) The phrase “in theory” is used since this self-regulatory power is not absolute. The Government can exert pressure on the professions to upgrade standards of professional competence and performance, to improve transparency and accountability of their regulatory and disciplinary practices and to alter practices that are deemed not to be in the public interest through a process of consultation with various parties including the professional bodies concerned. One example is the remarks by the then Attorney-General Jeremy Mathews, in a speech to accountants on 15 October 1988, threatening government intervention if the profession did not shape up. “Public interest considerations…may even demand of you as a profession, changes in attitudes and professional practices. This may result in your Society initiating changes through your own professional committees, or it may require changes of a more formal character which can only be brought about by regulation imposed from without by government” (quoted in Vittachi 1999: 99). The Government itself becomes part of the regulatory system when it establishes its own registration bodies to determine whether a professional is qualified to perform certain types of work or duties such as the AP system under the Buildings Ordinance. The Government can change the way it does business with the professions and in doing so impact on professional practices.

(43) See Krause (1996: 79–122) for an overview, from a comparative perspective, of the broader context of the relationship between the “amateur state” and the professions in Britain. He identifies some of the key features of the British case as follows: “Dominant regulatory mechanisms of the state invoke the advice-and-consent model, with the relevant state ministries consulting with the ‘affected interests’—the professions, for example. The ‘qualifying associations’ that register the professionals in each field are in the private sector, performing what are public functions in most other nations, and they also act as lobbies. The state does not control the training slots of professions, except indirectly through funding to some university programs, and does not control professional (p.435) performance at work except, again, indirectly through the impact of funding decisions. Parliamentary commissions […] recommend changes in professional conditions and behavior” (Krause 1996: 82)…This institutional framework has been largely replicated in Hong Kong, with the exception of the last point about the role of parliamentary commissions. The Government’s appointment of outside consultants to conduct studies and recommend reforms might be considered a functional equivalent.

(44) The key provision was Article 142 of the Basic Law: “The Government of the HKSAR shall, on the basis of maintaining the previous systems concerning the professions, formulate provisions on its own for assessing the qualifications for practice in the various professions. Persons with professional qualifications or qualifications for professional practice obtained prior to the establishment of the HKSAR may retain their previous qualifications in accordance with the relevant regulations and codes of practice. The Government of the HKSAR shall continue to recognize the professions and the professional organizations recognized prior to the establishment of the Region, and these organizations may, on their own, assess and confer professional qualifications. The Government of the HKSAR may, as required by developments in society and in consultation with the parties concerned, recognize new professions and professional organizations” (Chan and Clark 1991: 198). Dr. Leong Che-hung, who was a member of the Basic Law Consultative Committee, reportedly “proudly hails his successful campaign to have professional autonomy written into the mini-constitution as one of his achievements” (“’Golden Knife’”, South China Morning Post 2004).

(45) The following remark about the professional bodies of solicitors and barristers probably applies to other self-regulatory professions as well: “The two professional bodies jealously guard such a power [to set their own requirements for admission to the profession subject to the approval of the Chief Justice] and regard it as an essential element of being a profession. They argue that it is self evident that a profession should have power to decide what should be required of any person seeking entry to it” (Redmond and Roper 2001: 81).

(46) Current policy is that application for permission to enter (or remain) in Hong Kong for employment may be favourably considered if: (a) there is no security objection and the applicant has no known record of serious crime; (b) the applicant has a good education background, normally a first degree in the relevant field, but in some special circumstances, good technical qualifications, proven professional abilities and/or relevant experience and achievement supported by documentary evidence; (c) the applicant has a confirmed offer of employment, is employed in a job relevant to his/her academic qualifications or working experience that cannot be readily taken up by the local workforce; and (d) the remuneration package including income, accommodation, medical and other benefits is broadly commensurate with the prevailing market level for professionals in Hong Kong. When assessing the application, the criteria considered by Immigration include (a) whether there is a genuine vacancy for an employee in Hong Kong; (b) what skills, knowledge and experience are needed for the job; (c) whether the terms and conditions of employment are (p.436) comparable to those in the local market; (d) whether the applicant’s qualifications and experience are relevant to the job; and (e) whether the job can be filled locally. The employing companies may be required to satisfy the Immigration Department that they have made genuine efforts to recruit local candidates but without success. The Immigration Department will also consult experts within and outside the government, professional institutions/organizations in the related field, etc., on individual cases where necessary. Each application is considered on its individual merits. (Information provided by the Immigration Department, August 2004).

(47) A proposal included in a draft of the Medical Registration (Amendment) Bill but later dropped would have empowered the Medical Council to accredit any medical education programme, in Hong Kong or elsewhere, or any examination in medicine, surgery and midwifery set by a licencing body outside Hong Kong if the Council were satisfied with its standard. (The actual phrasing was “that the completion of such programme or the passing of such examination shows the achievement of a standard not lower than that achieved by the passing of the Licensing Examination.”) Had this provision been included in the final version of the bill, graduates of recognized non-local medical education programmes would no longer have to sit examinations in order to practise in Hong Kong. The Medical Council wanted this section of the draft bill deleted to “avoid possible political pressure” if it were given too much discretion over recognition of medical institutions outside Hong Kong. (Proceedings of the Legislative Council 28 July 1995: 6430).

(48) Over 90 percent of the candidates participating in the Licensing Examination which took place in 1996 were from Taiwan or China. Legislative Council, Panel on Health Services, Minutes of Meeting of 21 March 1997. LegCo Paper No. CB(2)1769/96–97.

(49) His concern was that such remarks by the Administration might be used as an argument to dispute the need for a local externship training and a licentiate examination for non-locally qualified medical practitioners who want to practise in Hong Kong (Legislative Council, Bills Committee on Legal Practitioners (Amendment) Bill 1999. Minutes of the third meeting held on Monday, 28 February 2000. LC Paper No. CB(2)2548/99–00, p. 6). See also the remarks two years earlier by Professor Felice Lieh Mak on the uniqueness of medical care in Hong Kong (Legislative Council, Panel on Health Services, Minutes of Meeting held on Friday, 21 March 1997, 3–4).

(50) A long-term solution to the decline in intake quality would be to widen the recruitment net for professional training programmes by raising the standards for admission and opening up competition for admission to the best and the brightest graduates from non-local universities (as has occurred in the case of admission into the PCLL programme at The University of Hong Kong).

(51) They attributed this situation to the culture of the medical profession and the colonial system. As they put it in their Executive Summary, the “leaders of organized medicine in Hong Kong are largely graduates of one medical school and have close professional ties to other commonwealth nations. As a result, their professional education and beliefs tend to be similar, creating close professional loyalties and collective defenses against criticism. This situation (p.437) has been further exacerbated by the fact that colonial powers commonly rule through the local elite, who decide on policies and programmes; the general public, lacking influence and substantive input, depend on the good intentions of the elite. This legacy continues in Hong Kong where there is little transparency or public input in assuring quality of health care, and raises a fundamental question: are the interests of patients and the public best served by the current system?” They did not accept the medical profession’s argument that the Medical Council, professional indemnity claims or peer review mechanisms provided effective checks and balances. It should be noted that the medical profession objected strongly to the Harvard team’s argument that the variable quality of health care could be attributed to a closed, colonial, elitist medical profession.

(52) Examples include continuing professional education for medical practitioners, developing ways to facilitate continuous quality improvement, clinical protocols, a system of clinical supervision, regular peer review and clinical audit, and risk management.

(53) A review in the mid-1990s of the opportunities for the Hong Kong professions in China noted how differences in the ways the professions were defined, organized, regulated, and practised in the two places, as well as the nature of national/local government requirements for setting up offices and firms, would pose challenges for Hong Kong professionals and professional firms hoping to enter the China market. See Chan (1996) for a discussion of the situation with specific reference to accountants, architects, bankers, engineers and lawyers. Gu (2001) on the basis of his study of three professional communities in China—accountants, lawyers and journalists—concludes that the “state-profession relationship in China is in transition, and it now occupies a stage between state socialism and state corporatism. On the one hand, the majority of professional organizations are state-owned, and some of them are still government-subsidized. The state still assumes most regulatory duties concerning the profession, and in some cases imposes rigorous control over professional activities. On the other hand, private professional organizations have emerged and their number is growing. The construction of community-based regulatory systems and the transition from the state’s administration of professions to systems of collegial self-governance are also underway. Professionalism and commercialism have replaced political commitment as the new principles dominating professional activities. In brief, professional autonomy is developing, although the pace of such development is still slow.” He notes the growth of professional autonomy in China was most advanced in accounting (the professional body had taken over many regulatory duties from a government body), least advanced in the mass media sector (a politically sensitive area), with the legal services sector falling somewhere in between.

(54) See Appendix 4 for details.

(55) I was informed that about 40 percent of the members of the HKIS work for the Hong Kong Government. By contrast, as of October 2004, only 8 percent of the members of the HKICPA worked in the public sector (HKICPA 2004: 21).

(56) In September 2004, an accountant who had qualified overseas lodged a complaint with COMPAG alleging that the HKICPA’s requirement to pass an Aptitude Test to be admitted as a member of the HKICPA, and to pass the Practising (p.438) Certificate (PC) Examinations before he could be issued with a PC was anti-competitive. COMPAG forwarded his complaint to the Financial Services and the Treasury Bureau (FSTB). FSTB subsequently advised that the rationale for both the Aptitude Test and the PC Examinations was reasonable but did raise a question about the inconsistency in waiving the Aptitude Test requirement for some classes of applicants but not others (Competition Policy Advisory Group: 27).

(57) See the essays in Loh (2006) that discuss how the functional constituency (FC) representatives in LegCo including those from the professions define their role, not surprisingly, primarily as that of protecting and promoting the particular interests of their respective constituencies. The interests of a professional constituency are not of course homogeneous so that FC representatives for the professions have sometimes come under criticism from within their constituency for promoting the interests of a particular group or interest within their profession.

(58) If the focus were on size of membership of these bodies, the rankings would change. A survey conducted by the Hong Kong Transitions Project in February 1996 asked respondents about their membership of various types of bodies. Some 10.2 percent reported being a member of professional organizations. This was higher than the 9.4 percent who reported belonging to a trade union (cited in Lo 1997: 196).

(59) It draws its working definition of professional associations from British Qualifications, 26th edition as those having the following aims (it explicitly excludes associations whose primary objective is to promote trade): (1) qualify individuals to act in a certain professional capacity; (2) safeguard high standards of professional conduct; (3) give their members an opportunity to keep abreast of a particular discipline or to undertake further study in it; (4) look after the interests of the practitioners in any particular profession.

(60) Some of those reported as founded in the 1950s would have predated the Second World War though not necessarily using their prewar name. The Hong Kong Medical Association, for example, was founded in 1920 as the Hong Kong Chinese Medical Association.

(61) It lists what this expertise is in some detail.