The New Legal Order in Hong Kong

The New Legal Order in Hong Kong

Edited by Raymond Wacks
Copyright Date: 1999
Pages: 712
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  • Book Info
    The New Legal Order in Hong Kong
    Book Description:

    As Hong Kong enters its third year under Chinese rule, the prognosis for the common law remains uncertain. Can the improbable doctrine of 'one country, two systems' be made to work? Will the political controversies that continue to bedevil the territory undermine the rule of law and the integrity of the legal order? The 21 essays in this important new collection consider these, and many other, questions. The first part examines several problems that lie at the heart of the Basic Law's promise of legal continuity. Hong Kong's economic order and its legal buttresses are analysed in Part 2, while the essays in Part 3 trace the shifts in social values as reflected both in Chinese and Hong Kong law. Though they embrace a wide area, the contributions to this volume suggest that, while many problems lie ahead, Hong Kong's law and legal system seem adequately entrenched to endure well into the future.

    eISBN: 978-988-220-228-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Preface
    (pp. ix-x)
    Raymond Wacks
  4. Contributors
    (pp. xi-xiv)
  5. Table of Cases
    (pp. xv-xxii)
  6. Introduction
    (pp. 1-6)
    Raymond Wacks

    In 1989, to mark the twentieth anniversary of the University of Hong Kong’s Faculty of Law, a volume of essays was published.¹ The book was an attempt, if not to prophesy, at least to contemplate, the likely development of our legal system in the decade that was about to unfold. Those ten years have now passed. The constitutional personality of Hong Kong has, of course, been transformed from British colony to Special Administrative Region (SAR) of the People’s Republic of China (PRC). And, perhaps less portentously, the Faculty of Law now commemorates its thirtieth birthday with this attempt to reflect...

  7. Part 1: The Changing Legal and Constitutional Order
    • 1 The Content of the Common Law in Hong Kong
      (pp. 9-38)
      Peter Wesley-Smith

      This essay seeks to explain the content of the common law in the HKSAR. It considers two principal aspects: first, whether the common law is frozen in its pre-handover condition; second, the impact on the common law of legislation which applied in the territory prior to the handover in 1997. It is based on these simple propositions:

      1. judges are assumed to be capable of changing the common law through judicial decision;

      2. the content of the common law — its rules and principles — is affected by legislation which abolishes or abrogates or displaces a portion of it;

      3. the repeal of...

    • 2 The Development of Constitutionalism in Hong Kong
      (pp. 39-94)
      Benny Tai Yiu-ting

      Stripping the concept down to its bare bones, constitutionalism refers to the regulation of a government’s powers. Its ultimate goal is to protect the individual rights and freedoms of its population.¹ In its widest sense, the concept includes more than just the legal code named as the ‘constitution’ — it refers also to the conventions and practices of the constitution, applicable legislation, and judicial decisions.

      There are therefore several aspects to constitutionalism. First, the guiding principle of many constitutions is the rule of law meaning that governments may only exercise those powers authorised by the constitution and the law in...

    • 3 The Form and Substance of Legal Interaction Between Hong Kong and Mainland China: Towards Hong Kong’s New Legal Sovereignty
      (pp. 95-132)
      H L Fu

      The Hon Mr Justice Findlay’s frustration has been shared by many who are interested in the issue of mutual legal assistance between Hong Kong and mainland China. Well before the transition of sovereignty on 1 July 1997, academics and practitioners on both sides of the border proposed possible mutual assistance schemes and issued warnings for the resulting legal vacuum if no agreement was reached.² Unfortunately, no such agreement was reached before the transition and no major progress has been made on the matter since reunification which not surprisingly, has led to serious concern in legal and business circles.

      The purpose...

    • 4 Inter-Jurisdictional Co-operation in Criminal Matters: Extradition, Mutual Legal Assistance, Prisoner Transfer to and from the HKSAR
      (pp. 133-162)
      Janice Brabyn

      At the end of 1984, the year the Joint Declaration was signed, Hong Kong had the following powers¹ and relationships² dealing with international co-operation in criminal matters:

      1. extradition powers and relationships, all provided by United Kingdom (UK) legislation, orders in council and/or treaties;³

      2. powers to permit and request prisoner transfer to or from any British possession or to the UK pursuant to imperial Colonial Removal of Prisoners Orders;⁴

      3. powers to provide or request the judicial taking or obtaining of evidence for or from a foreign jurisdiction, pursuant to Part VIII and Part VIIIA of the Hong Kong Evidence Ordinance (EO)...

    • 5 The Central-HKSAR Legislative Relationship: A Constitutional Assessment
      (pp. 163-182)
      Li Yahong

      Under the Basic Law the Hong Kong Special Administrative Region (HKSAR) is vested with legislative powers.¹ The HKSAR Legislative Council (LegCo), the legislature of the region,² enjoys a high degree of legislative autonomy. It may legislate on almost any matter that a national legislature is entitled to legislate on except for foreign affairs and defence.³ Daniel Fung, Hong Kong’s former Solicitor-General, once commented, ‘No federal state of which I am aware would tolerate a similar degree of separateness or autonomy on the part of any one region within the same country.’⁴ No doubt, such separateness or autonomy presents special challenges...

    • 6 Enforcement of Arbitral Awards Between Mainland China and Hong Kong: Before and After Reunification
      (pp. 183-210)
      Xian Chu Zhang

      A new page was turned when sovereignty over Hong Kong was resumed by China on 1 July 1997. Progress has, however, been somewhat patchy. In some cases, co-operation between the two sides has even seen a surprising retreat. The mutual recognition and enforcement of arbitral awards between mainland China and the HKSAR is one such regrettable example. The emergence of something approaching a legal vacuum has produced a damaging pause in co-operation between the two sides.

      This essay examines the development of mutual recognition and the enforcement of intra-China arbitral awards, the current situation, as well as legal concerns. The...

    • 7 The Status of Customary International Law in the Municipal Law of the HKSAR
      (pp. 211-234)
      Jianming Shen

      The title of this essay refers to the traditional and sometimes uncertain issue of the relationship between customary international law and municipal law: in particular, what status customary international law possesses vis-à-vis municipal law; and more specifically whether customary international law has supremacy over municipal law or vice versa. These issues will be examined from the two perspectives of within municipal legal systems and within the wider framework of the international legal system as a whole. Although at the international level, it is generally accepted that customary international law must be followed irrespective of any conflicting provisions in municipal legal...

  8. Part 2: The New Economic Order
    • 8 Stock Market Crises and Insider Dealing in Hong Kong: The Need for Regulatory Reform
      (pp. 237-288)
      Katherine Lynch

      The development of the Stock Exchange of Hong Kong Limited (SEHK) from a small local exchange to an international stock exchange mirrors the development of the HKSAR as a major international financial centre with one of the world’s freest and most open economies. Although stock trading in Hong Kong can be traced back to the 1860s, an organised stock market came about only in 1891 with the formation of the Association of Stockbrokers of Hong Kong.¹ In 1973 the Stock Exchange Control Ordinance was enacted which in effect limited the number of stock exchanges to four: the Hong Kong Stock...

    • 9 Internationalisation of Public Financial Law in Hong Kong
      (pp. 289-314)
      Joseph J Norton and Douglas W Arner

      Public financial law¹ in Hong Kong (as has typically been the case throughout the world) has developed in response to crises. This chapter will address the development of two key components of public financial law in Hong Kong over the past decade: banking regulation and capital market regulation. While Hong Kong has not always had effective systems of financial regulation, it has been steadily strengthening its regulatory framework both for financial institutions and for the securities markets.² The increasing effectiveness of its legal and institutional regulatory framework has enhanced its development as an international financial centre over the past ten...

    • 10 Public Accountability and the Executive: The Role of the Government in the Stock Market
      (pp. 315-340)
      Anne Carver and John Whitman

      ‘The doctrine of legality, which is the very essence of the rule of law itself, dictates that government should be prevented, by law, from exercising its power arbitrarily or capriciously — or, for that matter, from claiming power which it does not properly have.’¹

      Thus, the Lord Chancellor in a speech to the Hong Kong judiciary emphasised the doctrine of legality in the conflict between principle and pragmatism facing any government embracing the simplicity of the foundational principles of the separation of powers. It is difficult to conceive of a situation where principle and pragmatism have come into conflict more...

    • 11 Company Law in Hong Kong: Charting a New Course?
      (pp. 341-368)
      Anna Tam

      The history of Hong Kong as a colony of the United Kingdom in the period from 1842 to 1997¹ had a profound and obvious impact on the development of law in Hong Kong. From the earliest days, Hong Kong companies legislation has followed the English model very closely. Furthermore, as many of the relevant legal principles, based on common law and equity, are only to be found in judicial decisions, the landmark cases of the English courts also formed the foundation of company law jurisprudence for Hong Kong.² Company lawyers in Hong Kong may have mixed feelings towards the early...

    • 12 Revenue Law in Hong Kong: The Future
      (pp. 369-404)
      Richard Cullen

      Hong Kong’s revenue law regime has long been characterised by low taxes, a narrow tax base, and a simple structure.¹ Unlike tax systems in virtually all other developed jurisdictions, tax laws in Hong Kong are relatively brief and have survived with comparatively few amendments over decades of prodigious economic growth. Indeed, many argue that it is the very steadiness and simplicity of this system that has contributed so greatly to Hong Kong’s success prior to its return to the PRC on 1 July 1997. Further, the new Basic Law stipulates, albeit in somewhat indistinct terms, that Hong Kong’s simple low...

    • 13 Recent Reforms and Developments of Mainland Chinese and Hong Kong Maritime Law
      (pp. 405-434)
      Felix W H Chan

      As international trade with mainland China and Hong Kong grows, there is an increasing need for those trading with China to be aware of the effects of its rapidly changing economic climate. Already significant reforms have been made to maritime law and the admiralty legal systems of both mainland China and Hong Kong to cope with China’s booming international shipping industry. Chen Zhongbiao, president of COSCO (China Ocean Shipping Company) and Chairman of the China Shipowners Association, recently stated:¹

      The development of China’s foreign trade has been very rapid, since the beginning of reform and the open door policy. During...

    • 14 Hong Kong’s Law of Contract: The Last Thirty Years
      (pp. 435-476)
      Judith Sihombing

      At the beginning of this century, the classical theory of contract held sway: the essence of a contract consisted in the will or intention of the parties who had agreed to be legally bound and the court would give effect to that agreement. The intention of the parties was discovered by examining the presence of offer, acceptance, consideration, and of course intention. But this theory did not work easily in practice, except perhaps in cases of unilateral mistake where examination of the subjective intentions of the parties was relevant.

      Some of the inconsistencies of the subjective theory were remedied by...

    • 15 Employment and Trade Union Law: Ideology and the Politics of Hong Kong Labour Law
      (pp. 477-502)
      Wilson W S Chow and Anne Carver

      In The Future of the Law in Hong Kong,¹ the chapter on employment and trade union law² presented an overview of the law in the transition period to 1997. In particular it focussed upon the paradox of Hong Kong law reform in this area of law in which both the idealisation of the flexibility of the law and its limitations had to be recognised and reflected. The limitations and restrictions on the law reforms appeared sooner than predicted when, on 17 July 1997 the Provisional Legislature suspended three important labour laws,³ whilst amending sections of the Public Order Ordinance (Cap...

  9. Part 3: Shifting Social Values
    • 16 Confucian Legal Culture and Its Modern Fate
      (pp. 505-534)
      Albert H Y Chen

      One of the paradoxical phenomena of postmodernity is that while the economic and technological forces of globalisation are increasingly welding the world into a single global village, people, nations, ethnic, and religious communities in different parts of the world are re-discovering the importance of their cultural heritage and identity. The Enlightenment’s prediction and hope that the development of science and the disappearance of religious ‘superstitions’ would lead to the recognition by all human beings of values based on a universal rationality have not yet materialised even as the world approaches a new millennium. Instead, some of the most powerful social...

    • 17 The Mapping of Narratives in Hong Kong’s Post-Colonial Family Disputes
      (pp. 535-562)
      Anne S Y Cheung

      In the early days of British colonialism, Western judges in Hong Kong had a difficult time resolving local disputes according to English legal principles because of the deep-rooted resentment in Chinese culture to airing grievances in public.¹ Paradoxically, after more than a century of British rule, English-trained judges now lament the fact that family affairs should be brought into the open in a court of law. This change of heart seems to have coincided with the transfer of sovereignty from British to Chinese rule in 1997, and with the reawakening of Confucianism on the political agenda.²

      The purpose of this...

    • 18 Hong Kong Family Law in the Last Decade of British Rule: Towards a New Identity
      (pp. 563-594)
      Bart Rwezaura

      The history of Hong Kong family law was summed up in 1990 by Mr Justice Hunter who stated in C v C, that it had always been the policy of the colonial legislature ‘to use English experience and to follow England’s example’.¹ Legal practitioners and academics also agree that Hong Kong family law has borrowed heavily from England.² The effect of such a policy, as the Privy Council has held, is that where English legislation is adopted verbatim, the decisions of the House of Lords interpreting an equivalent English provision are binding on Hong Kong.³ Therefore, by design or default,...

    • 19 Equal Opportunities: A New Field of Law for Hong Kong
      (pp. 595-626)
      Carole J Petersen

      Less than a decade ago, the concept of ‘prohibited discrimination’ was almost entirely absent from our statute books.¹ Although various international conventions that applied to Hong Kong proclaimed a right to equality, these were not enforceable as part of Hong Kong’s domestic law.² Indeed, discriminatory laws and policies (such as the ban on female inheritance of much of the land in Hong Kong) were common and accepted as the norm. Virtually every newspaper contained job advertisements that specified the sex, age (and sometimes the race) of the intended applicants.³

      However, in the past four years, Hong Kong has acquired a...

    • 20 International Environmental Law: How Green Is the Future?
      (pp. 627-648)
      Roda Mushkat

      As befits its ‘international’ status, the HKSAR has entered the normatively challenging early phase of its existence with a respectable body of conventional and customary international law in the area of environmental protection. Yet, although the succession process appears to have been smooth, pressures have intensified: deteriorating environmental conditions, combined with the new political configuration, have reinforced the need for ‘internationalisation’ of a policy approach to environmental management, in line with the triangular formula of ‘think globally, plan regionally and act locally’. By the same token, the reception of international environmental provisions, and their incorporation into the domestic law, have...

    • 21 Preserving the System: The Educational Dimension
      (pp. 649-670)
      Stephen Nathanson

      In 1998 a committee was established to implement a ‘common examination’ system for the Postgraduate Certificate in Legal Education (PCLL) in Hong Kong. The proposal was to bring together the two university providers of PCLL, the University of Hong Kong and City University of Hong Kong, in order that both would offer the same examinations at the same time. The purpose of implementing common examinations was never clearly spelled out, but a special committee was formed to implement them. Its membership was drawn from the two universities and the professions (the Bar, the Law Society, and the judiciary).

      The law...

  10. Index
    (pp. 671-687)