The Sources of Hong Kong Law

The Sources of Hong Kong Law

Peter Wesley-Smith
Copyright Date: 1994
Pages: 356
https://www.jstor.org/stable/j.ctt2jc134
  • Cite this Item
  • Book Info
    The Sources of Hong Kong Law
    Book Description:

    Hong Kong has a curious mixture of laws old and new, written and unwritten, home-grown and imported. Made by various bodies in various ways with various results, these laws constitute a reasonably coherent body of rules, principles, practices, procedures, assumptions, and attitudes. How are these differing sources of law best described and explained? How are they mobilized and employed? How do they achieve the coherence they seem to display, and can that coherence be maintained? Such are the questions which this book seeks to illuminate. They are vital questions for a legal system undergoing significant change at a crucial time in the political development of Hong Kong.

    eISBN: 978-988-220-280-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-viii)
    PETER WESLEY-SMITH
  4. Table of Cases
    (pp. ix-xxxvi)
  5. Table of Legislation
    (pp. xxxvii-xlvii)
  6. Part One: The Common Law
    • 1 Understanding the Common Law
      (pp. 3-20)

      Hong Kong receives the common law and will continue to receive it after sovereignty reverts to China. But what is the common law? How do we identify it, and how is it best described? Considerable ambiguity pervades these issues. Some jurists doubt that the common law exists at all; others claim it is entirely intangible, a vapour, a chimera, ‘a brooding omnipresence in the sky’.¹ Yet, just as the concept of God survives despite widespread scepticism about the existence of a supreme being, the legal system seems to operate satisfactorily without a clear consensus on what the common law is....

    • 2 Theories of Adjudication
      (pp. 21-30)

      How do conscientious judges in the common law tradition go about the task of adjudication? Where and how do they find the law to apply in a particular case? What role is there for creativity, imagination, and personal responsibility? These are big questions, perennially fascinating and passionately debated. The answers to them have usually been sought in either the declaratory theory or some realist rejection of it.¹ It may be, however, that a useful approach lies not in choosing between the principal opposing theories but in recognizing the value of both and their ‘complementarity’ to each other.

      Corresponding to the...

    • 3 The Theory of Stare Decisis
      (pp. 31-64)

      The essential idea behind stare decisis is that a judge is required — thus has no discretion to refuse — to follow certain previous decisions. This obligation arises when a prior case A yields a proposition of law in circumstances which are indistinguishable from those confronting the judge in case B, and by a formal rule the judge in case B stands in an inferior relationship to the court which decided case A. Stare decisis requires three conditions:

      (1) an earlier case, and thus an element of ‘priorness’ or ‘pastness’,

      (2) factual similarity, and

      (3) a particular relationship between the decision-making authorities....

    • 4 The Practice of Horizontal Stare Decisis
      (pp. 65-80)

      Although it will depart from its own decisions reluctantly, the Privy Council is not bound by them.¹ When it is determining a matter of English law, however, it must follow a relevant decision of the House of Lords, on the theory that the House of Lords in its judicial capacity is the final judicial authority for the determination of English law.²

      When first established, the Supreme Court (now comprising the Court of Appeal and the High Court) consisted of only the Chief Justice. There could be no appeal, therefore, within the territory until a puisne judge was appointed in 1873,³...

    • 5 Vertical Stare Decisis Within Hong Kong
      (pp. 81-84)

      Should the Full Court’s decisions bind single judges in the present High Court? In several cases a positive answer has been given.¹ In another,² Hunter J recognized an obligation to follow a Full Court decision, though for various reasons he declined to comply with it.³ The principle is thus firmly established that High Court judges, and a fortiori their brethren in the District Court and magistracies, do not in principle possess any discretion in the face of relevant Full Court decisions.

      The same must be true for single judges confronted by local Court of Appeal decisions⁴ (the Court of Appeal...

  7. Part Two: The Reception of English Law
    • 6 Statutory Provisions Importing English Law
      (pp. 87-102)

      The British formally occupied the island of Hong Kong on 26 January 1841, pursuant to the non-ratified Treaty of Chuenpi. The first official act by Captain Charles Elliot, Chief Superintendent of Trade and Plenipotentiary, was the issue on 29 January¹ of a proclamation (dated 2 February) which stated, inter alia, that, pending Her Majesty’s further pleasure,

      (1) government was to devolve upon the Chief Superintendent,

      (2) natives of China were to be governed according to the laws and customs of China, every description of torture excepted,

      (3) all offences committed in Hong Kong by non-Chinese were to fall under the...

    • 7 Statute Law
      (pp. 103-114)

      Acts of Parliament can have effect in Hong Kong by various means:

      (1) by their own terms (proprio vigore),¹ either expressly or by necessary implication, and either passed for colonies generally² or specifically for Hong Kong;³ (2) by the terms of some other Act.⁴ Acts in force because extended by the imperial Parliament are the ‘highest’ form of law in Hong Kong because of the parliamentary supremacy doctrine;⁵

      (3) by the terms of an Order in Council, either statutory⁶ or prerogative;⁷

      (4) by the terms of a local ordinance, either by specific provision,⁸ by inclusion in the schedule to cap...

    • 8 The Effect of Pre-1843 Acts of Parliament
      (pp. 115-130)

      Since 1846, Hong Kong’s reception of English law was controlled by the cut-off date of 5 April 1843, and a legal adviser, when determining what law was in force in the territory, looked first to English law as it had existed on that day. Acts of Parliament which were then in effect in England, and not unsuited to colonial conditions, applied automatically in Hong Kong; Acts passed on any subsequent day were not part of Hong Kong law unless extending by their own terms or by other legislation. Rules of common law and equity were in force, if not inapplicable,...

    • 9 Common Law and Equity
      (pp. 131-142)

      When considering the circumstances of Hong Kong or its inhabitants in order to determine whether common law² and equity³ are applicable to the colony, an appropriate date must be selected. There are at least five⁴ candidates:

      (1) the date of reception (5 April 1843), at least for the period (1846–1966) when Hong Kong law contained a date of reception;

      (2) the date when the statute introducing English law came into force, depending, perhaps, on when the matter is being considered;

      (3) the date when the courts first considered the applicability of each particular rule;

      (4) the date at which the...

    • 10 Practice and Procedure
      (pp. 143-180)

      The precepts or propositions which guide courts in their decision-making endeavours are normally assumed, at least by positivists, to be ‘legal’; non-legal influences, such as considerations of morality, are outside the materials which judges ought to apply. The legislature makes law, by definition. It also specifies the circumstances when English law is to be in force in Hong Kong, and the Application of English Law Ordinance presumably refers only to precepts which belong to the legal arena. But the legislature also requires the Hong Kong courts in some circumstances to follow the practice, or the practice and procedure, of their...

    • 11 Vertical Stare Decisis
      (pp. 181-202)

      The extent to which English judicial decisions should bind the Hong Kong courts is at bottom a political issue, setting colonial dependence against autonomy. It also reflects a contrast between competing conceptions — unity versus diversity — of the common law.¹ For many Hong Kong judges, however, one suspects it is simply a matter of training and convenience: the pragmatic course, promoting certainty and predictability in a colonial legal system, is to follow English decisions wherever possible,² thus dealing with the familiar and making best use of libraries designed on the assumption that English decisions will largely prevail.

      The starting point of...

  8. Part Three: Chinese Law and Custom
    • 12 Chinese Law and Custom as a Source of Law
      (pp. 205-224)

      Hong Kong is a smart, cosmopolitan, modern city, an international trading and financial centre, and an industrial power. The infrastructure underpinning that status includes a Western-style legal system which applies English common law as varied and supplemented by legislation. Hong Kong is also, however, in some respects provincial, rural, and traditional, and side-by-side with modem law are Chinese norms which, though modified, existed before the area became British. ‘Chinese law and custom’,¹ despite its decline as a source of law — much of it was abolished, prospectively, in 1971² — still plays an important role in modem Hong Kong. And it will...

  9. Part Four: Aspects of Statutory Interpretation
    • 13 Ejusdem Generis and the Disjunctive
      (pp. 227-236)

      Judges in the common law tradition have usually been reluctant to expound upon matters of doubt that are not directly in issue. Macfee J once said: ‘after all this is a court of justice not an academy of law’,¹ and in adopting his words Pickering J commented: ‘The dangers of [supererogatory] pronouncements are well known and the embarrassment which they, though obiter, can occasion when second and wiser thoughts prevail, notorious.’² Such an attitude may have much to recommend it, but it results in pockets of uncertainty in the law with no means of anticipating what the final ruling might...

    • 14 Literal or Liberal?
      (pp. 237-248)

      Section 19 of the Interpretation and General Clauses Ordinance, in 1981 described by Sir Alan Huggins VP as ‘notorious’,¹ reads as follows:

      An Ordinance² shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.

      Imported from Canada³ via New Zealand,⁴ and having no counterpart in the United Kingdom, this provision made its first appearance in Hong Kong law in 1966.⁵ It has been referred to occasionally by the courts but no extended examination...

    • 15 Resort to Hansard
      (pp. 249-254)

      In ascertaining the meaning of an Act of Parliament, the English courts at one time did not hesitate to look at the record of Parliamentary proceedings.¹ By the latter part of the eighteenth century, however, judicial attitudes began to change, and in 1892 the House of Lords firmly rejected the use of Hansard (the published record) in statutory interpretation.² Various reasons have been given for this ‘exclusionary rule’:

      (1) Article 9 of the Bill of Rights 1688 provides that ‘the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or...

    • 16 Offences of Strict Liability
      (pp. 255-272)

      When legislatures create offences they do not usually require, in express terms, that the outlawed act be performed knowingly.¹ The courts nevertheless presume that some kind of mental element must be satisfied before an offence is committed: it would be unjust — contrary to the presumption of innocence and in accordance with ‘the principle of “tough luck”’² — to convict where the accused had no mens rea (‘a blameworthy state of mind’³). The usual requirement of mens rea⁴ may be avoided if the intention of the legislature to create ‘strict liability’,⁵ ‘strict responsibility’,⁶ or an ‘absolute offence’ is clear. The principles are...

    • 17 Mandatory or Directory?
      (pp. 273-288)

      The distinction drawn between statutory rules which are mandatory and those which are directory has often seemed unclear. The need to make the distinction arises in two situations: where a body is empowered to do something, and where procedural rules set out the manner in which an act is to be performed or lay down a condition precedent to the act.² The crucial issue, once the distinction is made, is what the consequence shall be of failure to perform the act or comply with the procedure. The following statement from Liverpool Borough Bank v Turner³ has been quoted more than...

    • 18 Retroactive and Retrospective Ordinances
      (pp. 289-302)

      The courts have often struggled with the question whether legislation is to be construed as having some kind of retrospective effect. Since it is difficult to conceive of any non-declaratory statute which does not alter existing legal relations, all non-declaratory statutes must affect something which has existed in the past. In some circumstances, however, an effect on something which has existed in the past is forbidden. The problem lies in identifying such circumstances.

      The following principles, in the main derived from an article by Elmer A Driedger,¹ may be stated, though their application will often be exasperatingly difficult.

      (1) There...

  10. Index
    (pp. 303-307)