Hong Kong Legal System

TEXT, CASES
and
COMMENTARY
on the
HONG KONG
LEGAL SYSTEM
Michael John Fisher

Hong Kong University Press
The University of Hong Kong
Pokfulam Road
Hong Kong
www.hkupress.org
© 2019 Hong Kong University Press
ISBN 978-988-8390-96-0 (Hardback)

ISBN 978-988-8390-97-7 (Paperback)
All rights reserved. No portion of this publication may be reproduced or transmitted in any
form or by any means, electronic or mechanical, including photocopying, recording, or any
information storage or retrieval system, without prior permission in writing from the publisher.
The copyright in the Judgments HCMP3908/1997 Guido Karl Wenk v Alan Lee Goldstein
(16.7.1998) and FACV24/2007 A Solicitor v The Law Society of Hong Kong (13.3.2008) are
owned by the Government of the Hong Kong Special Administrative Region (“Government”).
The Judgments published in Text, Cases and Commentary on the Hong Kong Legal System
are reproduced from those posted on the Judiciary’s website with the permission of the
Government. The Government accepts no liability or responsibility for the accuracy or com-
pleteness of any of the Judgements being published in Text, Cases and Commentary on the
Hong Kong Legal System.
British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library.
10 9 8 7 6 5 4 3 2 1
Printed and bound by Ocean Printing Co. Ltd., Hong Kong, China
Contents
Table of Cases vi
Table of Legislation xi
Introduction xv
1. The Development of the Hong Kong Legal System, 1842–1997 1

2. Sources of Hong Kong Law 59
3. The Hong Kong Court System 129
4. Legislation and the Interpretation of Statutes 173
5. Judicial Precedent and the Doctrine of Stare Decisis 236
6. Hong Kong’s Professional Judiciary 271
7. The Legal Profession and Legal Education 302
8. Lay Participation in the Hong Kong Legal System 339
9. Legal Aid and Advice and Unmet Legal Need 367
10. Alternative Dispute Resolution 401
11. The HKSAR and PRC Legal Systems Compared 432
12. The Legal Interface between Hong Kong and Mainland China 489
13. Policing and the Decision to Prosecute 528
14. An Introduction to Legal Research in Hong Kong 565
Postscript 588
Illustration Credits/Acknowledgements 593

Index 595
Table of Cases
Hong Kong Best Sheen Development Ltd v Official

Agrila Ltd & Others v Commissioner of receiver and Trustee [2001] 3 HKC 79
Rating & Valuation [2001] HKCFA 42 89
215
A Solicitor v Law Society of Hong Kong C & Others v Director of Immigration
[2006] 2 HKC 429 310, 321 (2013) 16 HKCFAR 280 149, 386
A Solicitor v Law Society of Hong Kong Calimpex International Co (A Firm) v ENZ
[2008] 2 HKC 1; (2008) HKCFAR Information Systems Ltd [1994] 1
117 46, 48, 50, 102, 105, 109, 121, HKC 191 267
131, 132, 239–249, 252, 258–261, 264, CCIC Finance Ltd v Guangdong
291, 567, 582, 583 International Trust & Investment
A Solicitor v Law Society of Hong Kong Corporation [2005] 2 HKC 589 516
and Secretary for Justice [2003] Chan Kam Nga v Director of Immigration
HKCFA 14 108, 136, 324, 446 [1999] 1 HKC 347 98, 137, 224, 225
Aspial Investment Ltd v Mayer Corp [2014] Chan Shun Cho v Chak Hok Ping (Re Chak
5 HKC 259 153 Chiu Hang) [1925] 20 HKLR 1 4, 5
Attorney-General v Lui Fuk-yuen (1976) Chen Li Hung & Another v Ting Lei Mao
Fct, Crim App No 300 of 1975 218 & Others [2000] 1 HKC 461 (Ku Chia
Chun & Others v Ting Lei Miao &
Bank of China (Hong Kong) Ltd v Fung Others) 515
Chin Kan [2003] 1 HKLRD 181 308 Cheung Chi-man v R (1974) FCt, Crim App
Bank of China (Hong Kong) Ltd v Twin No 265 of 1974 218
Profit Ltd & Others [2012] 4 HKC 75 Cheung Lai Wah v Director of Immigration
153 245
Bank of China (Hong Kong) Ltd v Wong China Field Ltd v Appeal Tribunal
King Sing & Others [2002] 1 HKC 83 (Buildings) (2009) 12 HKCFAR 342
120, 121 Chiyu Banking Corporation Ltd v Chan Tin
Bank of China (Hong Kong) Ltd v Yang Fan Kwun [1996] 2 HKLR 395 492
[2016] 3 HKLRD 7 495 Chun Sang Plastics v Commissioner of
Beijing Tong Gang Da Sheng Trade Co Ltd Police [2018] HKCFI 661 218
v Allen & Overy (A Firm) & Another Commissioner for Television &
[2014] 4 HKC 333 (CFI); [2015] Entertainment Licensing Authority v
HKCA 234 394 Oriental Daily Publisher Ltd & Others
(1998) 1 HKCFAR 279 147
Table of Cases vii
Commissioner of Inland Revenue v Hong Kong SAR v Pan Shenfang & Others
Common Empire Ltd [2004] HKIA 1 (No 823 of 2002) 161
200, 213 Hong Kong SAR v Wan Hon Sik [2001] 3
HKLRD 283 199, 220
Delight World Ltd v The Town Planning Hong Kong SAR v Yeung May Wan [2004]
Appeal Board [1997] HKLRD 1106 3 HKLRD 797 172
212, 213 Ho Tsz Tsun v Ho Au Shi & Others [1915]
Democratic Republic of the Congo v FG 10 HKLR 69 4, 5, 116
Hemisphere Associates LLC [2009] 1
HKLRD 410 (CFI) 229 In the Matter of a Solicitor (1999) CACV
Democratic Republic of the Congo v FG No 182 of 1999 311
Hemisphere Associates LLC [2010] 2 Intelligent House Ltd v Chan Tung Shing &
HKLRD 66 (CA) 229 Others [2008] 4 HKC 421 143
Democratic Republic of the Congo v FG
Hemisphere Associates LLC (2011) 14 Joint Official Liquidators of A Co and B Co
HKCFAR 95 41,97, 228–232, 438 [2014] 4 HKLRD 374 515
Director of Immigration v Chong Fung Yuen
[2000] 1 HKC 359 214, 226, 232 Kunming Factory of Prestressed
Vibrohydropressed Concrete Pipe v
Esquire (Electronics) Ltd v HSBC Ltd & True Stand Investment Ltd & Another
Another [2006] HKCA 383 276 [2006] 4 HKLRD 501
FB & Others v Director of Immigration Lam Chi Kong v Tai Siu Chin & Another
386 [2007] HKCU 975 324
Feerni Development Ltd v Daniel Wong & Lam Kin Sum v Hong Kong Housing
Partners [2001] 1 HKC 373 323 Authority [2004] HKCA 349 214
First Laser v Fujian Enterprises (Holdings) Lam Kwan-shi v Lam Wan-hing [1967]
Company Ltd (2012) 15 HKCFAR 569 HKLR 616 218
489 Lau Kong Yung & Others v Director of
Immigration 171, 225
GA & Others v Director of Immigration Lee Fuk Hing v Hong Kong SAR [2004] 7
387 HKCFAR 600
Guido Karl Wenk v Alan Lee Goldstein Leverson Ltd v Secretary for Transport
[1998] HKCFI 252 196–198 [2003] HKLdT 11 200–202
Hong Kong Racing Pigeon Association v Man Leung v Man Yuet Kwai [2013] 2
Attorney-General & Another [1995] 2 HKLRD 1122 117
HKC 201 213 Medical Council of Hong Kong v Chow Siu
Hong Kong SAR v Lee York Fai & Others Shek [2000] 2 HKC 428 203
CAAR 3/2011 166
Hong Kong SAR v Ma Wai Kwan David Ng Fung Hong Ltd v ABC [1998] 1 HKC
[1997] 2 HKC 315 25, 34, 100, 241 291 497
Hong Kong SAR v Ng Kung Siu [1999] 1 Ng Siu Tung & Others v Director of
HKLRD 783 68 Immigration (2002) 5 HKCFAR 225
Hong Kong SAR v Ngo Van Nam (2016) Ng Yuen-shiu v Attorney-General [1981]
CACC 418/2014 167, 316 HKLR 352 245
viii Table of Cases
Nishimatsu-Costain-China Harbour Joint Shenzhen Kai Long Investment &

Venture v Ip Kwan & Co [2000] 2 Development Co Ltd v CEC Electrical
HKC 445 308 Manufacturing (International) Co Ltd
[2003] 3 HKLRD 774 500
Pepsi-Cola International Ltd v Charles Lee Siegfried Adelbert Unruh v Hans-Joerg
[1974] HKLR 13 566 Seeberger & Another [2007] HKEC
268 394
R v Kwong Kui Wing & Others 1 HKDCLR Sun Legend Investments Ltd v David Ho
15 251 [2009] HKCFI 853 303, 304
R v Ling Yee Shun [1988] HKCFI 394 220 Susanto-Wing Sun Co Ltd v Yung Chi
R v Pang Chun Wai [1993] 1 HKC 233 Hardware Machinery Co Ltd [1989] 2
164 HKC 504 122
R v Yuen Kuen Chi (1985) Cr App No 52 0f Swire Properties v Secretary for Justice
1985 316 [2003] 3 HKC 347 408–410
Re C (A Bankrupt) [2006] 4 HKC 582 553
Re Cheng Kai Nam [2002] 2 HKLRD 39 Tsang Chin Keung v Employees
161 Compensation Assistance Fund [2003]
Re China Medical Technologies [2014] 2 2 HKLRD 627 324
HKLRD 997 514 Tse Moon-sak v Tse Hung & Others (In Re
Re Insigma Technology Co Ltd [2014] Tse Lai-chiu deceased) [1969] HKLR
HKCFI 1839 513 159 6, 115, 116
Re Irish Shipping Ltd [1985] HKLR 437
513, 514 UBC (Construction) Ltd v Sung Foo Kee
Re Pioneer Iron & Steel Group Co Ltd Ltd [1993] 2 HKLR 207 254, 568
[2013] HKCFI 324 514
Re Setaffa Investment Ltd [1998] 3 HKC Vallejos Evangeline Banao v Commissioner
342 221 of Registration & Another (20013) 16
Re The Estate of Ng Shum (No 2) [1990 HKCFAR 45 84, 85, 172, 234, 299
HKLR 67 117 Victor Chandler (International) Ltd v Zhou
Re Yung Kee Holdings (2015) 18 HKCFAR Chu Jian He [2008] 4 HKC 232 44,
510 514 45
Re Yung Kwan Lee [1999] 4 HKC 281 37,
38 Wei Mao International (Hong Kong) Co
Ronald Claud Hardwick v Spence Robinson Ltd v Shanxi Lianli Industrial Co Ltd
[1975] HKLR 425 323 [2004] 499
Wong Kam Ying & Another v The Estate of
Secretary for Justice & Others v Chan Wah Man Hung Pun [[1967] HKLR 201
& Others (2000) 3 HKCFAR 459; 116, 117
[2000] 3 HKLRD 641 88, 223 Wright v Hampton, Winter & Glynn (A
Secretary for Justice v Wong Sau Fong Firm) [2008] 2 HKLRD 341 309
[1998] 2 HKLRD 254 249 Yao Yeong Wood & Another v The Standard
Shandong Textiles Import & Export Oil Co of New York [1907] HKLR 55
Corporation v A Hua Non-Ferrous 114
Metals Co Ltd [2002] 2 HKC 122
497
Table of Cases ix
UK/England and Wales Harley v McDonald [2001] 2 WLR

Allen v Emmerson [1944] KB 362 217 1749 324
Anderton v Ryan [1985] 2 All ER 355 Hedley Byrne & Co Ltd v Heller & Partners
264, 288 Ltd [1964] AC 465 262, 324
Arthur J S Hall v Simons [2002] 1 AC 615 Heydon’s Case (1584) 76 ER 637 202
315, 324 Heywood v Wellers (A Firm) [1976] 1 All
ER 300 323
Baker v Jones [1954] 1 WLR 1005 408
Bell v Lever Bros Ltd [1932] AC 181 257 Jones v Padavatton [1969] 1 WLR 328 256
Beswick v Beswick [1966] 3 All ER 1 217
Beswick v Beswick [1968] AC 58; [1967] 2 Kleinwort Benson Ltd v Lincoln City
All ER 1197 204, 217 Council [1998] 4 All ER 513 104,
Black-Clawson International Ltd v 107, 289, 290
Papierwerke Waldhof-Aschafenburg
AG [1975] AC 591 203, 204, 209 Lim Chin Aik v R [1963] 2 WLR 42 221,
Bliss v SE Thames RHA [1985] IRLR 308 222
323 London Tramways Co Ltd v London County
Council [1898] AC 375 263
Cambridge Gas Transportation Corporation
v Official Committee of Unsecured Magor & St Mellons v Newport Corporation
Creditors of Navigator Holdings plc [1951] 2 All ER 839 198, 483
[2007] 1 AC 508 515, 516 Marquis of Camden v Inland Revenue
Candler v Crane, Christmas & Co [1951] 2 Commissioners [1914] 1 KB 641 220
KB 164 261, 262 Maunsell v Olins [1975] AC 373 199
Chan Wing-Siu v R [1985] AC 168 267, Miller v Jackson [1977] QB 966 112
268 Moy v Petman Smith & Another [2005] 1
Cohen v Roche [1927] 1 KB 169 112 All ER 903 324
Condron v UK [2001] 31 EHRR 1 533
Pao On v Lau Yiu Long [1980] AC 614
D’Avigdor-Goldsmid v IRC [1953] 1 All ER 253
403 199 Pepper v Hart [1993] 1 All ER 42
Donoghue (or McAlister) v Stevenson 205–216, 576
[1932] AC 562 255, 256, 261, 403 Powell v Kempton Park Racecourse Co
[18989] AC 143 217
Fisher v Bell [1961] 1 QB 394 199, 200, Prince Jefri Bolkiah v KPMG (A Firm)
202, 219 [1999] 2 AC 222 308
Fothergill v Monarch Airlines [1980] 3
WLR 209 204, 219, 220 R v Allen (1877) LR 1 CCR 367 201
R v Ford [1989] 3 All ER 445 348
Gallie v Lee (see Saunders v ABS) R v Goodyear [2005] EWCA Crim 888
Grey v Pearson (1857) 6 HL Cas 61 201 168
R v Jogee/Ruddock v R [2016] UKSC 8;
Hamilton-Jones v David & Snape (A Firm) [2016] UKPC 7 267, 268
[2004] 1 All ER 657 323 R v Secretary of State for the Home
Department, ex parte Launder [1997] 3
All ER 961 511
x Table of Cases
R v Secretary of State for the Home Wood v Scarth (1855) 8 E & B 815; (1858)
Department, ex parte Launder (No 2) 1 F & F 293 111
[1998] 3 WLR 221 511 Wrotham Park Estate Co Ltd v Parkside
R v Shivpuri [1986] 2 All ER 334 264, 288 Homes Ltd [1974] 2 All ER 321
R v Turner [1970] 2 QB 321 168, 316 WWF World-Wide Fund for Nature v World
R v Wang [2005] UKHL 9 343 Wrestling Federation Entertainment Inc
Re Sigsworth [1934] All Er Rep 113 201 [2007] EWCA Civ 286 254
Re Singularis Holdings [2014] UKPC 36
515 Young v Bristol Aeroplane Company Ltd
Rondel v Worsley [1969] 1 AC 191 314, [1944] 2 All ER 293 242, 245–247,
324 249, 250
Royal Bank of Scotland v Etridge (No 2)
[2001] 4 All ER 449 120, 121, 308 Other
Royscot Trust Ltd v Rogerson [1991] 3 All Brady v US 397 US 742 (1970) 315
ER 294 566
Carr v Western Australia [2007] HCA
Salt v Stratstone Specialists Ltd [2015] 47 198
EWCA Civ 745 216
Saunders v Anglia Building Society [1970] 3 Hemofarm DD MAG International Trade
All ER 961 258 Holdings DD, Suram Media Ltd v
South Caribbean Trading Ltd v Trafigura Jinan Yongning Pharmaceutical Co Ltd
Beheer [2005] 1 Lloyds Rep 128 254 [2008] Min Si Ta Zi No 11 501
Stennett v Hancock & Peters [1939] 2 All
ER 578 256 United States v Lui Kin Hong 110 F 3d 103
Stilk v Myrick (1809) 2 Camp 317; (1809) 6 (1st Circuit 1997) 512
Esp 129 253, 266, 568
Surrey County Council v Bredero Homes Xinggang Ouya Technology Co Ltd v
[1993] 3 All ER 705 254 Xinjiang Pijiuhua Inc Supreme
Sussex Peerage Claim (1844) 11Cl & Fin 85 People’s Court Reply to Civil Court
196 Ruling No 48 (2006) (Issued 28
November 2007) 501
Tempest v Kilner (1846) 3 CB 249 219
Trendtex Trading Corp v Central Bank of
Nigeria [1977] 1 QB 529 229
Williams v Roffey Bros & Nicholls [1990] 1

All ER 512 253, 254, 266, 568
Witter (Thomas) Ltd v TBP Industries Ltd
[1996] 2 All ER 573 216
Table of Legislation
Hong Kong Legislation (Cap 622), then re-named Companies

Adaptation of Law (Interpretative (Winding Up and Miscellaneous
Provisions) Ordinance (No 26 of 1998) Provisions) Ordinance 221, 514
40, 41 Community Service Orders Ordinance (Cap
Administrative Appeals Board Ordinance 378) 169
(Cap 442) 150 Contract (Rights of Third Parties) Ordinance
Application of English Law Ordinance (Cap (Cap 623) 187, 188
88) 8–10, 44, 45, 63, 65, 105, 114, Control of Exemption Clauses Ordinance
176 (Cap 71) 63, 119
Arbitration (Amendment) (No 2) Ordinance Control of Obscene and Indecent Articles
(64 of 1989) 405 Ordinance (Cap 390) 146, 147
Arbitration (Amendment) Ordinance 2000 Conveyancing and Property Ordinance (Cap
(No 2 of 2000) 496 219) 10
Arbitration Ordinance (Cap 341) 405, 406, Crimes (Amendment) Ordinance (No 24 of
409, 410, 423, 496 1993) 467
Arbitration Ordinance (Cap 609) 406–408, Crimes Ordinance (Cap 200) 467
414, 496, 500, 501 Criminal Procedure Ordinance (Cap 221)
Architects Registration Ordinance (Cap 408) 124, 155, 164, 169, 170, 535, 554, 555
151
Dangerous Drugs Ordinance (Cap 134)
Bill of Rights Ordinance (Cap 383) See 532
Index Dentists Registration Ordinance (Cap 156)
Boundary and Election Commission 151
Ordinance (Cap 432) 66
British Nationality (Miscellaneous Elections (Corrupt and Illegal Conduct)
Provisions) Ordinance (Cap 186) 66 Ordinance (Cap 554) 549
British Nationality Act 1981 (Consequential Electoral Provisions Ordinance (Cap 367)
Amendments) Ordinance (Cap 186) 66
66 Employment Ordinance (Cap 57) 144, 145
Broadcasting Ordinance (Cap 562) 147 Evidence Ordinance (Cap 8) 517, 518
Chinese Extradition Ordinance (Cap 235)
66 Film Censorship Ordinance (Cap 392) 147
Companies Ordinance (Cap 32) [Partially Foreign Lawyers Registration Rules (Cap
replaced by Companies Ordinance 159S) 303
xii Table of Legislation
Foreign Marriage Ordinance (Cap 180) 65 Lands Tribunal Ordinance (Cap 17) 142,
Fugitive Offenders Ordinance (Cap 503) 427
37, 503, 504, 508 Legal Aid in Criminal Cases Rules (Cap
221D) 376
Heung Yee Kuk Ordinance (Cap 1097) 89 Legal Aid Ordinance (Cap 91) 371, 377,
Hong Kong Court of Final Appeal 379, 380
(Amendment) Ordinance (No 11 of Legal Aid Services Council Ordinance (Cap
2002) 136 489) 372
Hong Kong Court of Final Appeal Legal Practitioners Ordinance (Cap 159)
Ordinance (Cap 484) 45, 60, 134, 108, 136, 151, 305, 310, 313, 321, 323,
135, 153, 279–282, 335, 336 332, 333, 352
Hong Kong Reunification Ordinance (Cap Legal Practitioners (Amendment) Ordinance
2601) 31–34, 100 (No 87 of 2003) 313
Legal Practitioners (Amendment) Ordinance
Immigration (Amendment) Ordinance (Ord 2010 320, 336
No 23 of 2012) 149 Legal Services Legislation (Miscellaneous
Immigration Ordinance (Cap 115) 67, 148, Amendments) Ordinance 1997 303
149, 387, 533, 549, 550 Legislative Council (Electoral Provisions)
Independent Commission Against Ordinance (Cap 381) 66
Corruption Ordinance (Cap 204) Limitation Ordinance (Cap 347) 323
547–549
Independent Police Complaints Council Magistrates Ordinance (Cap 227) 365,
Ordinance (Cap 604) 539 366, 563
Inland Revenue (Amendment) Ordinance Mainland Judgments (Reciprocal
Ord No 23 of 2012 149 Enforcement) Ordinance (Cap 597)
Inland Revenue Ordinance (Cap 112) 149, 493
150, 200 Mediation Ordinance (Cap 620) 416, 425
Interpretation and General Clauses Medical Registration Ordinance (Cap 136)
Ordinance (Cap 1) 33, 41, 191–193, 151, 352
209–212, 215, 218, 221 Minor Employment Claims Adjudication
Board Ordinance (Cap 453) 145
Jury (Amendment) Ordinance (No 3 of Misdemeanours Punishment Ordinance (No
1986) 343 1 of 1898) 548
Jury (Amendment) Ordinance (No 72 of Misrepresentation Ordinance (Cap 284)
1997) 345 64, 566, 580
Jury Ordinance (Cap 3) 344–346, 349, Mutual Legal Assistance in Criminal Matters
350, 355, 359 Ordinance (Cap 525) 493
Juvenile Offenders Ordinance (Cap 226)
169, 170 New Territories Land (Exemption)
Ordinance (Cap 452) 92, 93
Labour Tribunal Ordinance (Cap 25) 144
Land (Compulsory Sale for Redevelopment) Offences Against the Person Ordinance (Cap
Ordinance (Cap 545) 143 212) 467
Landlord and Tenant (Consolidation) Official Languages Ordinance (Cap 5)
Ordinance (Cap 7) 142 160, 193
Table of Legislation xiii
Ombudsman Ordinance (Cap 397) 150, Societies Ordinance (Cap 151) 67

550, 551 Solicitors’ Accounts Rules (Cap 159F)
Ordinance No 7 of 1845 (number of jurors) 311, 321
343 Solicitors’ (Group Practice) Rules Cap 159X
Ordinance No 4 of 1849 (financial eligibility 303
of jurors) 343 Solicitors’ Practice Rules (Cap 159H) 307
Ordinance No 4 of 1851 (character & Solicitors’ (Professional Indemnity) Rules
eligibility of jurors) 344 (Cap 159M) 311
Ordinance No 11 of 1864 (number of jurors) Stamp Duty Ordinance (Cap 117) 153
343 Supply of Services (Implied Terms)
Ordinance No 37 of 1947 (female jurors) Ordinance (Cap 457) 323
344 Supreme Court Ordinance, 1844 7, 8, 64,
Organised and Serious Crimes Ordinance 113
(Cap 455) 309 Supreme Court Ordinance, 1873 [Revised
Overseas Lawyers (Qualification for as Supreme Court Ordinance (Cap 4)]
Admission) Rules (Cap 159Q) 306 (Re-named High Court Ordinance) 6,
8, 34, 116
Pension Benefits (Judicial Officers)
Ordinance (Cap 401) 285, 286 Telecommunications Ordinance (Cap 106)
Personal Data (Privacy) Ordinance (Cap 147
486) 67, 94 Theft Ordinance (Cap 210) 535
Police Force Ordinance (Cap 232) Trainee Solicitors Rules (Cap 159J) 332
532–536 Transfer of Sentenced Persons Ordinance
Prevention of Bribery Ordinance (Cap 201) (Cap 513) 38
506, 547, 548 Trustee Ordinance (Cap 29) 111, 218
Probation of Offenders Ordinance (Cap 298)
169 Unconscionable Contracts Ordinance (Cap
Public Order Ordinance (Cap 245) 67 458) 65
Public Revenue Protection Ordinance (Cap
120) 190 Wills Ordinance (Cap 30) 6, 91
Rating Ordinance (Cap 116) 153 United Kingdom Legislation

Regulation of Jurors and Juries Ordinance Access to Justice Act, 1999 402, 403
(Ord No 7 of 1845) 340 Arbitration Act, 1950 405
Rendition of Chinese Criminals Ordinance
(No 2 of 1871) 509 British Nationality Act, 1981 15, 66
Rules of the District Court (Cap 336H)
399 Constitutional Reform Act, 2005 131, 444
Rules of the High Court (Cap 4A) 323, Consumer Rights Act, 2015 119
399, 400 Contracts (Rights of Third Parties) Act, 1999
185
Sale of Goods Ordinance (Cap 26) 111 Criminal Attempts Act, 1981 264, 288
Securities and Futures Ordinance (Cap 571) Criminal Justice Act, 1988 347
150, 543, 544 Criminal Justice Act, 2003 356
Small Claims Tribunal Ordinance (Cap 338)
146
xiv Table of Legislation
Criminal Justice and Public Order Act, PRC Legislation

1994 533 Arbitration Law of the PRC 478, 479, 496,
499, 500
Finance Act, 1976 205
The Basic Law of the Hong Kong Special
Human Rights Act, 1998 265, 445, 567 Administrative Region (SAR) of the
People’s Republic of China (PRC)
Judicature Acts, 1873–1875 111, 569 See Index
Jury Amendment (Northern Ireland) Order Basic Law of the Macau SAR of the PRC
SI 1987/1283 26
Law of Property Act, 1925 10, 217 Civil Procedure Law of the PRC 480, 481
Law of Property (Miscellaneous Provisions) Constitution of the PRC 69, 70, 122, 434,
Act, 1989 10, 65 441, 447, 451, 452, 459–461, 463, 480
Law Reform (Miscellaneous Provisions) Contract Law (Code) of the PRC 434
Act, 1970 10 Criminal Law (Code) of the PRC 458,
Legal Aid Act, 1949 371 473, 485, 506
Criminal Procedure Law of the PRC 459,
Misrepresentation Act, 1967 64, 566 461, 463, 464, 469, 470, 473
Northern Ireland (Emergency Provisions) Enterprise Insolvency Law (Enterprise

Act, 1973 356 Bankruptcy Law) of the PRC 513,
516, 517
Occupiers’ Liability Act, 1984 65
Offences Against the Person Act, 1861 201 The Law on Judges (Judges’ Law) of the
PRC 452, 453
Punishment of Death Act, 1832 465 The Law on Lawyers (Lawyers’ Law) of the
PRC 470, 475, 476
Restriction of Offences Weapons Act, 1959 Legislation Law (Law on Legislation) of the
199 PRC 448, 449, 484, 485
Restriction of Offences Weapons Act, 1961
199 Nationality Law of the PRC 24, 49
Sale of Goods Act, 1979 110 People’s Mediation Law of the PRC 480
Statute of Frauds, 1677 10
Regulations for the Organisation of People’s
Trustee Act, 1925 110 Mediation Committees 480
Unfair Contract Terms Act, 1977 63, 119,

574
Unfair Terms in Consumer Contracts
Regulations, 1994 119
Unfair Terms in Consumer Contracts
Regulations, 1999 119
Introduction
The parameters of Hong Kong’s “legal system” are not clearly defined. I have,
broadly, covered those topics encompassed in the syllabus for “Hong Kong Legal
System”, as required for the pre-PCLL “conversion” examination for this subject. As
such, this book should be very useful for those intending to take this examination,
especially those preparing via self-study. However, I hope that by including a wide
range of learned and thought-provoking readings I have produced a book that will
be of interest to those (legal scholars and others) with no “functional” motive. This,
I hope, will include those outside Hong Kong since, surely, Hong Kong’s current
system, influenced by internal and external forces, civil and common law, is unique.
Given that this unique system owes much to a “constitutional” document, Hong
Kong’s Basic Law, it is inevitable that there is a blurring of the lines between legal
system and constitutional law. There is herein, as a result, significant reference to
the Basic Law, specifically, and to the Deng Xiaoping-inspired “one country, two
systems” doctrine generally. However, I do not claim to be a constitutional law
expert and I have made numerous references to the work of such experts which will,
hopefully, inspire the reader to look more closely at the constitutional position.
Similarly, while the aforementioned “Hong Kong Legal System” syllabus
requires an introductory knowledge of the PRC legal system, I am not an expert
thereon and have referred to works by those who are. Students able to read texts in
Chinese will have an advantage, in attempts to deepen their PRC law expertise, over
the rest of us.
Given the broad scope of this book and the dynamic nature of many of the
included topics, the subject is constantly in flux. To take just one example, I men-
tioned (in my first draft) a relatively minor dispute relating to “anti-hawking” activi-
ties in Mong Kok at Chinese New Year, 2015. Twelve months later a similar dispute
escalated into a “riot”, participants in which have received lengthy prison sentences.
This incident and its possible repercussions, given the opportunism of the pro-Bei-
jing camp, threaten the very fabric of “one country, two systems”. I have little doubt
that, by the date of publication, some of the material herein will be superseded by
events. There are times, perhaps, when one envies the scholar of Roman law!
xvi Introduction
Crucial to Hong Kong’s success and well-being is a sustained international rec-

ognition of the continuation of the rule of law and an independent judiciary; the
cornerstones of “two systems” and, in comparison with the legal system of mainland
China, “Hong Kong’s difference”. Thus far these tenets have been maintained, in the
face of enormous political pressure and despite an unsympathetic and increasingly
pliant Hong Kong government. Optimism that “two systems” will survive after the
50 years guaranteed by the Basic Law (or even that long) is receding, but Hong Kong
has proved its resilience over the years and we can still hope.
MJF
1
The Development of the Hong Kong
Legal System, 1842–1997
Overview
When the British first came to Hong Kong they found a territory vastly different
from the one we know today. Wesley-Smith1 writes:
When Hong Kong was first taken over by the British it was rumoured to be a barren
rock with hardly a house upon it. The island’s few inhabitants were peasants and
fishermen who lived under the rule of Chinese law and custom.2
The population of Hong Kong Island in 1841, when the British flag was first
raised, was around 5,000.3 While that small population had previously been subject
to the rule of the Chinese emperor, there was no complex, developed legal system
in operation. Indeed, Ip writes that there “was not even a civil or military presence
there.”4
The initial approach of the British was to allow Hong Kong’s Chinese inhab-
itants to retain, generally, their previous laws and customs but to impose British
law on non-Chinese. This approach gradually gave way to one in which British law
would apply unless it ran counter to existing (Chinese) custom and practice. In most
situations there was little difference, in practical effect, between the two approaches.
This recognition of Chinese customary law became increasingly important with
the annexation of the New Territories in 1898, adding around 100,000 largely rural
dwellers to Hong Kong’s population.
The system whereby English common law operated in Hong Kong unless inap-
plicable to Hong Kong’s situation or specifically amended in Hong Kong remained
essentially unchanged until the resumption of sovereignty of Hong Kong by China
in 1997. Indeed, to a considerable extent, the system remains today, as a result of the
1. Peter Wesley-Smith, An Introduction to the Hong Kong Legal System (1st edn, Oxford University
Press 1987).
2. Ibid 35. By the 3rd edition Wesley-Smith omits reference to the “barren rock”, first attributed to Lord
Palmerston, British foreign secretary and later prime minister. The “rock” was indeed barren but this
was the result of tree-felling for charcoal rather than soil infertility.
3. The estimate of various historians ranges from 5,000 to 10,000.
4. Eric Ip, Law and Justice in Hong Kong (2nd edn, Sweet & Maxwell 2016).
2 Text, Cases and Commentary on the Hong Kong Legal System
guarantee in the Basic Law of the continuation of the “laws previously in force” for
(at least) 50 years from 1997.5
1.1 The British occupation of Hong Kong

Writing in 1991, Miners6 states:
Hong Kong exists as a separate territorial unit today because of military aggression
against the Chinese empire in the nineteenth century.7
Curiously, however, the acquisition of Hong Kong was almost accidental, as

opposed to part of a planned strategy. At the commencement of the “First Opium
War” (1840–1842) Lord Palmerston, British Foreign Secretary, had ordered Rear-
Admiral George Elliot and his cousin Captain Charles Elliot to demand restoration
of goods (impounded opium), satisfaction for a previous “affront” to Admiral Elliot,
security for British traders and payment of debts to British merchants. This was to be
either via cession of an island, or through a treaty allowing factories to be set up on
the mainland. The aim, as articulated by Lord Palmerston, was “satisfaction for the
past and security for the future”.8
Hong Kong was viewed as an excellent port because of its deep water (far
superior to (then Portuguese) Macau) but “a long voyage from Macau and Canton”.9
Eventually, a somewhat reluctant Captain Elliot,10 now in charge of the British
forces,11 insisted on the cession of Hong Kong as part of the Convention of Chuenpi12
(never ratified) in 1841, which followed a successful British expedition to seize the
“Bogue forts”13 on the Pearl River leading to Canton (Guangzhou).
Following further hostilities and several British victories, Hong Kong was ceded
to Britain “in perpetuity” under the subsequent Treaty of Nanking, signed in 1842.
Later, after the “Second Opium War”, China ceded the Kowloon peninsula to
Britain, again “in perpetuity” under the Convention of Peking (Beijing) in 1860.
Finally, in 1898, Britain obtained the New Territories and Outlying Islands, via
a further Convention of Peking (also known as the Convention for the Extension of
5. This is the combined effect of Articles 8 and 159 of the Basic Law, Hong Kong’s post-1997
quasi-constitution.
6. Norman Miners, The Government and Politics of Hong Kong (5th edn, Oxford University Press
1991).
7. Ibid 3.
8. Kevin Rafferty, City on the Rocks (Viking 1990) 115.
9. See Roger Houghton, ‘A People’s History 1793–1844 from the Newspapers’ <http://www.houghton.
hk/> accessed 4 January 2018.
10. Elliot opposed opium use and, in a proclamation of 11 September 1839, stated: “I will not protect
opium smugglers. The smugglers have put our lawful trade at risk.”
11. His cousin had resigned because of ill health.
12. Signed at Shajiao Fort.
13. A corruption of the Portuguese “Bocca Tigris” (tiger’s mouth), itself a translation of the Cantonese
“Fu Moon”.
The Development of the Hong Kong Legal System, 1842–1997 3
Hong Kong) taking advantage of China’s defeat in war with Japan. This latter acqui-
sition, however, was, crucially,14 under a 99-year lease, which expired in 1997.15
1.1.1 Captain Elliot’s proclamation(s)16

Captain Elliot17 declared British sovereignty over Hong Kong on 26 January 1841
and, six days later, proclaimed that:
the natives of the Island of Hong Kong and all natives of China thereto resorting,
shall be governed according to the laws and customs of China, every description of
torture excepted.18
The proclamation(s),19 therefore, envisaged a binary legal system; one law

applying (generally) to Chinese citizens and the other to non-Chinese. That this was
the effect of the proclamation(s) the Hong Kong courts have endorsed on a number
of occasions.20
Elliot’s declaration, whereby the inhabitants of Hong Kong would have been
subject to alternative systems of law dependent on their nationality, the British soon
sought to recant,21 on the basis that Elliot had no authority to make such a proclama-
tion.22 The editor of the newspaper “Friends of China” stated that:
we doubt Elliot has authority to found a civil government on Hong Kong or sell any
land (as he purported to do). We cannot even say whether the British government
will retain the island.23
Moreover:
These two Proclamations were . . . mere interim measures. The Treaty of Nanking,
by which Hong Kong was formally ceded to Great Britain, was signed in 1842 and
. . . provided that Hong Kong ‘was to be governed by such laws . . . as Her Majesty
. . . shall see fit to direct.’24
14. See 1.5 below.

15. Miners (n 6) states that Britain would have preferred an “outright” cession but was hampered by the
agreement of leases by the other colonial powers.
16. There were, strictly, two proclamations: one issued to the inhabitants of Hong Kong and the other (not
identical) issued generally.
17. Officially “Chief Superintendent of Trade”.
18. See GB Endacott, A History of Hong Kong (2nd edn, Oxford University Press, Hong Kong 1988) 26.
19. The first proclamation (of 1 February) was issued jointly with Commodore Bremer. The second (2
February) was issued by Elliot alone.
20. See 1.2 below.
21. Though they had always insisted that British in China would not be subject to Chinese law!
22. Elliot’s conciliatory approach was viewed by Palmerston as a negation of Britain’s military
superiority.
23. R Houghton (n 10).
24. PC Woo, moving a resolution in the Legislative Council (LegCo), 7 May 1969.
Elliot was recalled to Britain and replaced by the more bellicose Sir Henry
Pottinger.25 However, despite doubts as to his authority,26 Elliot’s proclamation (or
proclamations) remained an important constitutional document, relied on by the
courts on numerous occasions.27
1.2 The reception of English Law

Wesley-Smith28 writes:
Even if the first British officials had bothered to look for it and utilise it, the Chinese
legal system as it existed in Hong Kong was scarcely appropriate for the kind of
place the colony was destined to become. In any event, the new rulers were intent on
establishing a legal system which was familiar to them and which was assumed to
be far superior to anything found in the Chinese empire . . .
One of the first things to do, therefore, was to introduce English law into Hong
Kong.29
The decision to import English law contradicted Captain Elliot’s initial

proclamation(s) of 1841, when he first took possession of Hong Kong Island. The
revised position, following the ratification of the Treaty of Nanking in 1843, was
that, instead of Chinese citizens continuing to be subject (in most cases) to Chinese
law, English law would operate in Hong Kong unless it conflicted with the customs
or circumstances of Hong Kong. Wesley-Smith, again, writes:
From 1846 to 1966, the formula by which English law was received into Hong Kong
applied the laws of England which existed on 5 April 1843, the day Hong Kong
obtained a local legislature. There was a proviso, however: English law considered
not suited to the circumstances of Hong Kong or of its inhabitants was excluded.
The intended result was to provide a basic source of legal precepts which, though
developed thousands of miles away in response to the notions and traditions of the
English people, could be fashioned in accordance with local needs and conditions.30
While notionally different, and appearing to involve a different presumption (that

English law would apply to Hong Kong Chinese citizens “unless” . . . ) the reception
of English law practically differed little from Elliot’s design in most cases. English
law would not apply if contrary to local custom. What would be the major indicator
of local custom? In practice, it would be the existence of already established “laws
25. Endacott (n 19) states that Pottinger initially supported Elliot’s “dual system” approach but later
changed his mind. Tsang states that the British Government ordered Pottinger to disavow the dual
system: Steve Tsang, A Modern History of Hong Kong (Hong Kong University Press 2004) 23.
26. See DME Evans, ‘Common Law in a Chinese Setting’ (1971) 1 HKLJ 9.
27. See, eg, Chan Shun Cho v Chak Hok Ping (Re Chak Chiu Hang) (1925) 20 HKLR 1; Ho Tsz Tsun v
Ho Au Shi & Others (1915) 10 HKLR 69 discussed below.
28. Note 1.
29. Ibid 38–39.
30. Ibid 35.
and customs of China”. The practical continuance of Elliot’s “duality” concept may
be seen in a number of cases, some of which will now be considered.
In Ho Tsz Tsun v Ho Au Shi & Others31 the Hong Kong Court of Appeal was
called upon to determine the application of a Chinese will in Hong Kong and acceded
to a request to insert the words “in accordance with Chinese law and custom” after
the words “next of kin” in varying a judgment of the Chief Justice. The court presi-
dent, Havilland De Sausmarez, stated:
We have in the Colony two systems of distribution, one under the Statute [of
Distributions] which has been recognised by the Courts, and the other the Chinese
law of inheritance or succession which according to the evidence is and always has
been observed by Chinese residents . . .
. . . the practice in the Colony appears to have been to apply Chinese law to the
devolution of the personalty of Chinese, and the Statute of Distributions to that of
non-Chinese, and unless this is the rule, it is clear there will have to be legislation, as
it is manifestly impossible that the legal system of either should apply to the other.
But I have come to the conclusion that the practice is in conformity with the law . . .
. . . I have no doubt that the island was, prior to its cession, part of the dominions
of the Emperor of China, and that its inhabitants were subject to Chinese law and
custom . . . If proof of this were needed . . . we have it in the proclamation of Captain
Elliot . . . and a similar proclamation was made in Chinese to the inhabitants . . .
. . . The common law of the Chinese is preserved, torture, which was prevalent,
was excepted, and the foreigner is excepted from the common law of China and
subjected to ‘British law’.32
Similarly, in Chan Chun Cho v Chak Hok Ping,33 a case involving an inheritance
dispute, Sir Henry Gollan CJ stated:
Hong Kong is a colony obtained by cession from China and consequently the laws
of China as in force in Hong Kong at that time remained operative, except such as
were contrary to the fundamental principles of the English law e.g. laws permitting
of torture, slavery etc. and subject to the right of the Crown to alter and change those
laws . . .
Two proclamations were issued by Captain Elliott [sic] . . .
. . . these proclamations recognise a dual prospective system of law in the Colony. So
far as British subjects and foreigners are concerned, security and protection accord-
ing to the principles and practice of the British law are extended to them; whilst in
the case of the Chinese the laws and customs of China are reserved in their favour.
31. (1915) 10 HKLR 69.

32. Ibid 72–76.
33. (1925) 20 HKLR 1.
Except, therefore, in so far as the laws and customs of China have been altered
by legislation or Orders in Council in the nature of legislation and subject to the
conditions above specified, those laws and customs as existing on the dates of
Captain Elliott’s [sic] Proclamations would continue to apply to ‘the natives of the
Island of Hong Kong and all natives of China thereto resorting.’34
This “dual” approach to the “applicable law”, based on ethnicity, was not
unproblematic. What would be the position, for example, of those with dual ethnic-
ity? Or those Hong Kong Chinese who wished, for example, to adopt the English
rules on marriage or inheritance? And, where Chinese law was found to be appli-
cable, should it be that obtaining at the date of Elliot’s proclamation, or the date of
trial? Some illustration of the difficulties is afforded in the case of Tse Moon-sak v
Tse Hung & Others (In re Tse Lai-chiu, deceased)35 involving the validity of a will
made, in 1958, by a Chinese resident of Hong Kong. The case concerned an apparent
conflict between section 5 of the Supreme Court Ordinance36 and section 3 of the
Wills Ordinance.37 The former legislation incorporated the principle that English
legislation in existence in 1843 (when Hong Kong first obtained a legislature) would
apply to Hong Kong unless (locally) inapplicable or locally modified. The latter
(Wills) legislation rendered valid wills made according to Chinese law by anyone
“native of or domiciled in” Hong Kong or China. The specific issue was whether
a testamentary disposition could be valid given the (asserted) rule that Ch’ing law
regarded property as belonging to the family rather than an individual.38
In reaching its decision the court adopted the principle that English law would
apply unless its application would cause “injustice or oppression”. Hogan CJ’s
judgment reveals a subtle reassessment of the significance of Captain Elliot’s proc-
lamation. He states:
The primary question for the court is whether the deceased, who was Chinese by
race and domiciled in Hong Kong, was able by this will to exercise a testamentary
capacity in accordance with English law. If that question were to be answered in the
negative, a further question would arise as to whether the law applicable to the testa-
tor’s will would be Chinese law as it stood when Hong Kong was ceded or some
different or later form of Chinese law and custom . . .
. . . if it had been thought that the relevant English Law was not applicable to the cir-
cumstances of those, probably mainly fishermen, who were resident in Hong Kong
in 1843 because, for example, of unfamiliarity with the system, would this neces-
sarily mean that sophisticated individuals of the same race now in the Colony, who
have long been accustomed to the comparatively cosmopolitan atmosphere which
34. Ibid 3–5.

35. [1969] HKLR 159.
36. Cap 4 (and see 1.2.2).
37. Cap 30.
38. A further argument that international law forbade testamentary capacity for Chinese was rejected.
has grown up here and the application of English principles of law and equity in so
many matters, should be similarly precluded from the application of English Law?
. . .
The earlier judgments were clearly influenced . . . by the terms of Captain
Elliot’s proclamations and they may have tended to impose on the relevant sections
of the substantive law an interpretation attuned to giving effect to these proclama-
tions, without making adequate allowance either for the difference in language or
for the temporary nature of those parts of the proclamations . . . to making interim
arrangements . . . in so doing, they have reversed the approach adopted in the leg-
islation and have virtually assumed that Chinese law and custom should be applied
unless found unsuitable whereas the legislation clearly indicates that English law
will prevail, unless there are circumstances affecting the inhabitants which make it
inapplicable . . .
I cannot think that in the circumstances prevailing in 1960, and indeed for
many years before, it could seriously be contended that to permit the deceased to
exercise the testamentary capacity . . . could be classified as unjust or oppressive . . .
Consequently I think the testamentary capacity of the deceased is to be determined
by referring to English law.39
This lengthy extract highlights the court’s view of changing circumstances.

Chinese law, at the time of cession, was the “law of the land” in Hong Kong and
would remain in force in the absence of English law rules to the contrary. However,
it could not prevail over English law unless the latter operated “unjustly or oppres-
sively”. There would now be situations where, far from having English law imposed,
Hong Kong Chinese citizens might welcome the adoption of English legal rules.
Where there was no applicable English law, however, the court accepted that the
court would require evidence of relevant Chinese law and custom, leaving vague
the question of whether this would be 1843 Chinese law and custom or that of later
amendment.
1.2.1 The mechanism for the reception of English law

The constitutional mechanism whereby the new, colonial procedures were imple-
mented involved the introduction of two documents. The first, known as the “Letters
Patent”,40 outlined the constitutional structure and conferred powers upon the
Governor, while making provision for the assistance of an Executive Council and
Legislative Council. The second constitutional document, the “Royal Instructions”,
set out the rules relating to the composition of the Executive and Legislative Councils
and detailed the procedures to be observed in the passing of laws.
After 1843, this constitutional framework allowed laws to be created in Hong
Kong. The first significant example was the Supreme Court Ordinance of 1844.
39. Ibid 164–193.

40. “Patent” indicated openness, transparency.
1.2.2 The Supreme Court Ordinances

The purpose of the Supreme Court Ordinance 1844 was to incorporate the laws
of England into Hong Kong law. English laws were to have effect in the colony
except where inapplicable to local circumstances in Hong Kong or its inhabitants.
Amendments to the legislation in 1845 and 1846 established that only English laws
existing before the institution of a separate Hong Kong legislature in 1843 would
automatically apply, prima facie, in Hong Kong.
A further Supreme Court Ordinance, of 1873, added the further significant
restriction that English laws would not be applicable in Hong Kong where they had
been amended by local legislation.
The Supreme Court Ordinances also established the court system of Hong Kong.
Although, technically, no distinction was drawn between legislative and common
law English rules,41 in practice English post-1843 statutory rules (established by leg-
islation) would not apply in Hong Kong (unless expressly or implicitly intended to
have such effect) while common law (non-statutory) rules, established by the English
courts post-1843, took effect in Hong Kong, unless inapplicable, via the “fiction”,
known as the “declaratory” theory, whereby decisions of the court are deemed to
have “explained” what the common law has always been.42
1.3 The Application of English Law Ordinance

Because it became increasingly difficult to determine which laws were in force in
England in 1843, and because many of such laws had been superseded by Hong
Kong “domestic” legislation, the Application of English Law Ordinance43 (AELO)
of 1966 was passed. The Ordinance:
. . . split English law into two types (enactments, and common law and equity), dealt
with each separately, and deleted the [1843] cut-off date.44
Section 3 of the Ordinance provides that the common law and the rules of
equity45 shall be in force in Hong Kong:
(a) so far as they are applicable to the circumstances of Hong Kong or its inhabitants;
(b) subject to any modifications as such circumstances may require;
(c) subject to any amendment thereof (whenever made) by:
(i) any Order in Council which applies to Hong Kong;
(ii) any Act which applies to Hong Kong;
(iii) any Ordinance.
41. For further discussion of the distinction between statutory and common law rules, see Chapter 2.
42. The declaratory theory has since been declared a myth: see Chapter 2.
43. Cap 88.
44. P Wesley-Smith (n 1) 40.
45. The concepts of common law and equity will be discussed in depth in Chapter 2.
Significantly, the 1843 cut-off date was abolished so that post-1843 common
law and equitable developments would be applicable in Hong Kong. As has been
noted, this legislative change largely gave force to existing practice whereby post-
1843 common law rules continued to be incorporated via the “declaratory” fiction.
Section 4 of AELO stated that Acts of Parliament were to be in force in Hong
Kong only if contained in the “schedule” (which contained only pre-1843 legislation)
or where they were expressly or implicitly applicable to Hong Kong. The schedule
had been drawn up after considerable scrutiny and was limited to those Acts relevant
to Hong Kong. The list could be amended by the Legislative Council (LegCo) and,
by 1997, was very short. AELO was not adopted as a law of the Hong Kong Special
Administrative Region (HKSAR) following the resumption of Chinese sovereignty
of Hong Kong on 1 July 1997; so the possibility of subsequent British legislation
having effect in Hong Kong ended.
The effect of AELO seems, at first sight, to be relatively straightforward: the
English rules of common law and equity would continue to operate in Hong Kong
(irrespective of the date of their formation) while post-1843 statutes would apply
only if specifically applicable to Hong Kong. The legislation was intended to facili-
tate considerably the task of legal “research”. Legal advisers seeking to determine
the applicability of English legislation would only have to look at the schedule and
a list of post-1843 legislation specifically stated to apply (or implicitly applicable)
to Hong Kong.
The position in relation to common law and equity as developed through case
law was, indeed, relatively simple. The cut-off date had largely been ignored anyway
via the “declaratory” principle whereby an overruling precedent is “deemed” not
to be creating new law but merely “explaining” what the common law always has
been! This “fiction”, recognised as such and finally abolished by the English courts
(post-1997) had the useful function of preventing Hong Kong law being dominated
by English rules long considered to have outlived their usefulness.
In respect of statutes, unfortunately, AELO’s application in Hong Kong was
problematic. A statute passed in the British Parliament might, of course, amend the
English common law.46 The statute would not be listed in the schedule and might not
be directly applicable to Hong Kong. However, in so far as the legislation affected
the English common law which was to be applicable, irrespective of its date of
origin, the legislation would appear, indirectly, to apply in Hong Kong. The amend-
ment of the English common law by English legislation thus produced a dilemma.
If the amended law were to be deemed part of Hong Kong law it would mean that
legislation not stated to apply in Hong Kong nor applicable by implication, would
still be applicable in Hong Kong as part of the “revised” English common law. But
this would negate the apparent legislative purpose of allowing, prima facie, common
law rules to apply in Hong Kong but not, prima facie, legislative ones. Alternatively,
46. This would occur, at the latest, as soon as English courts had interpreted and applied the statutory
rule.
to preclude the effect of “non-applicable” legislation would mean that Hong Kong
would be applying an English common law no longer applicable in England itself.
To take an example, the doctrine of part performance was introduced in equity
in response to the rigidity of the Statute of Frauds 1677 requirement that contracts
for the disposition of land must be evidenced in writing. Part performance allowed
the enforcement of a “land contract” where acts had been done which pointed inevi-
tably to the conclusion that a contract (albeit not one evidenced in writing) had been
concluded. The equitable doctrine of part performance was specifically endorsed by
Parliamentary enactment of 1925, namely section 40(2) of the Law of Property Act.
This subsection was re-enacted in Hong Kong by section 3(1) of the Conveyancing
& Property Ordinance (CPO)47 though, as part of the English common law,48 it was
presumably already part of Hong Kong law (section 3(1) serving merely to consoli-
date existing rules). The doctrine of part performance was abolished in England by
subsequent legislation: the Law of Property (Miscellaneous Provisions) Act 1989.
This statutory rule, of course, had no direct effect in Hong Kong. Could it take
indirect effect in Hong Kong as an amendment to the English common law? The
answer is no, since it would be inconsistent with Hong Kong legislation (the CPO).
Thus, part performance, long-abolished in England whence it originated, remains
part of Hong Kong law, post-1997, unless and until repealed in Hong Kong.49
But what if the relevant consolidating section of CPO had not been enacted?
In such circumstances the revised English common law would, indirectly, apply to
Hong Kong under section 3 of AELO. By way of a further contract example, the
archaic action for breach of promise of marriage was abolished in England in 1970.
The relevant statutory rule, section 1 of the Law Reform (Miscellaneous Provisions)
Act 1970, had no express or implicit relevance to Hong Kong so was not directly
applicable in Hong Kong. Nonetheless, since breach of promise of marriage ceased
to be part of the (revised) English common law by virtue of the English statute, it
has never been doubted that, by virtue of section 3 of AELO, Hong Kong’s common
law has been similarly amended, albeit indirectly, by the (legislative) change to the
English common law.
Although AELO was “not adopted”, post-1997, as part of the law of the Hong
Kong SAR, this change was relevant only to the inability of the English Parliament,
or courts, to legislate, or establish common law rules, for Hong Kong post-1997,
since Articles 8 and 18 of the Basic Law maintain (subject to exceptions)50 the laws
“previously in force” in Hong Kong on 1 July 1997. Indeed, under Article 8, the
existing rules of common law and equity are specifically stated to remain in force
(subject to exceptions), unless amended.
47. Cap 219.

48. “Common law” here means “non-statutory” law so, confusingly, includes principles of equity (see
Chapter 2).
49. Article 8, Basic Law maintains the rules in force on 1 July 1997 (and see Chapter 2).
50. See Chapter 2.
11
The HKSAR and PRC Legal Systems
Compared
Overview
It is clear that, in a work of this kind, consideration of the vast and complex area of
the comparison between the legal systems of the Hong Kong SAR and the (mainland)
People’s Republic of China (PRC) needs to focus on “macro” issues. This chapter
will consider the core features of Hong Kong’s common law system and contrast
these with the situation obtaining in the PRC.1
The key, broad focus will be the “rule of law” in Hong Kong; what it means and
the extent to which it is to be found in the PRC’s rapidly developing legal system.
In so far as consideration is given to specific “micro” issues, these will be by way of
illustration of more general principles rather than as part of a detailed study of the
PRC legal system, for the study of which students should refer to texts dedicated to
this subject.2
While the PRC, in the past 30 or so years, has made enormous and rapid strides
towards the development of a modern legal system, with a huge expansion of courts,
judges, lawyers, legal assistance and alternative dispute resolution, a key considera-
tion is the extent to which law in practice reflects the legal form in the PRC (what
socio-legal writers describe as the “law in action/law in books” dichotomy) given,
especially, the vastness of China and the practical problem of efficiently delivering
centrally introduced reforms to the provinces.
11.1 The “two systems” aspect of “one country, two systems”

It is accepted, and indeed affirmed in the Basic Law, that Hong Kong’s is a “common
law” system.3 While, as has been noted, that expression is capable of differing
meanings, in this context it refers to a system of law deriving initially from the
1. In adopting a “generalist” approach, this chapter reflects the approach of the syllabus for Hong Kong
Legal System, as approved for the PCLL “conversion examination”; namely that the focus should be
on the “essential differences” between the two systems.
2. A particularly recommended text is Professor Albert Chen, An Introduction to the Legal System of the
PRC (4th edn, LexisNexis 2011).
3. See especially Articles 8, 18, and 84 of the Basic Law.
The HKSAR and PRC Legal Systems Compared 433
English courts and adopted subsequently in various jurisdictions, usually having

colonial links with Britain.4
A general characteristic of common law systems is their emphasis on “judge-
made” law, law which derives primarily from cases, amended and supplemented as
these may be by legislation.5
But if Hong Kong’s system is uncontroversially a common law one, what of the
PRC system? It is most commonly described as a “civil law” one; that is, a system
deriving from the “codification of law” approach of the Roman Empire subsequently
adopted and spread, particularly by Napoleonic and post-Napoleonic France. But the
ascription “civil law” is not uncontentious. Indeed, the first point to stress is that the
whole concept of law and any sort of legal system has only recently re-emerged in
the PRC. Chen,6 in describing “The Legal History of Modern China”,7 notes that the
first “belated efforts” to modernise the Chinese legal system were not made until the
early part of the twentieth century and adds that: “The Qing empire was overthrown
in 1911 before it began to implement the new laws which had been drafted.”8
Chen goes on to state that:
In the period 1928–1935, a series of comprehensive codes of law were promulgated.
They were partly based on the European (civil) continental model (such as the laws
of Germany, Japan and Switzerland), partly on the Anglo-American model, and also
to some extent on the existing traditions of the late Qing and warlord periods.9
Most significantly, however, all this extensive legal development was swept
away during the Cultural Revolution in which:
The demise of the legal system . . . was not merely an incidental side-effect of the
fanatic and violent political campaign . . . The legal system was one of the targets
of deliberate attacks by the radicals. The very idea of law was discredited and held
in contempt . . . legal institutions were attacked and paralysed or dismantled. Law
schools were closed down. Members of the legal community were persecuted or
forced to shift to other kinds of work. In short, law neither existed as an academic
discipline nor as a rational mechanism of social control . . . It was not until 1972
that the court system was gradually re-established. The procuratorates [prosecuting
departments] . . . were not resurrected until 1978.10
4. Occasionally, for political reasons, a jurisdiction may adopt the “common law” as a deliberate rejec-
tion of a “civil law” legacy: this appears to have occurred, to some extent, in Rwanda whose Tutsi
government blame civil law France for assisting previous Hutu oppression of the Tutsi.
5. See in particular Chapters 2 and 4.
6. A Chen, An Introduction to the Legal System of the PRC (n 2).
7. Ibid Chapter 3.
8. Ibid 23.
9. Ibid.
10. Ibid 32–33.
The Mao era has been described by Cheng Li11 as one of “legal nihilism”. Li
adds, strikingly, that:
the neglect [in Mao’s China] of even a basic legal consciousness accounted for the
fact that, from 1949 to 1978, the PRC promulgated only two laws, one being the
constitution itself and the other being the marriage law.12
The importance of law was recognised by the post-Mao PRC leaders, none more
so than Deng Xioaping, twice “purged” in the turmoils of the Mao Zedong “lawless”
era.13 The absence of a proper, developed legal system was seen as one reason for the
emergence of the radical, “anti-rights” forces of the Mao era. The effective construc-
tion of a post-Mao legal system (involving the creation of thousands of courts and
procuratorates, extension of judicial training, codification of laws and the develop-
ment of alternative dispute resolution) has been effected with incredible speed for a
country as large as China.
What has emerged, in this very short time, is a rapidly developing, rapidly
evolving system,14 which is part codified civil law15 and part “socialist” law (the
latter with its emphasis on the primacy of the political; the supremacy of the
Communist Party). Indeed, even the common law has significance in the modern
PRC system since, for example, the Contract Law Code draws heavily on concepts
well understood by common lawyers,16 and the criminal procedure rules are argued
to be moving from a civil law “investigating judge” tradition to a more “adversarial”
common law-type procedure,17 at least in theory. Even the common law “bedrock”
principle of “judicial precedent” has attained some significance in the PRC with the
Detailed Rules on Implementing Guiding Cases introduced by the Supreme People’s
Court in 2015.
Given such a rapid development of the PRC legal system it is perhaps inevitable
that there will be, occasionally, government nervousness and “retrenchment”.
11. C Li, ‘The Rise of the Legal Profession in the Chinese Leadership’ China Leadership Monitor,
No 42.
12. Ibid 12.
13. It has been suggested that Deng’s fateful “Tiananmen” decision was influenced by his fear of student-
led terror, experienced at first hand during the “Red Guard” era.
14. Between 1979 and 2006 the number of cases filed in PRC courts increased from 520,000 per year to
7.89 million! The increase continues though the rate is slowing. A major impetus was China’s entry
into the World Trade Organization in 2001.
15. The major influences have been the German civil code and Japanese law (itself influenced by German
law).
16. “PRC’s contract law presents a hybrid version with key concepts from both Common law tradition
and the Civil law tradition”: G Li, ‘The PRC Contract Law and Its Unique Notion of Subrogation’
(2009) 4.1 Journal of International Commercial Law and Technology 12, 21.
17. See G Zheng, ‘Towards an Adversarial System of Criminal Justice?’, University of Hong Kong/
National University of Singapore Law Symposium: ‘The Common Law in the Asian Century’, HKU
Faculty of Law, 11–12 December 2006.
11.2 The rule of law: Meaning18

During the turmoil of “Occupy Central”, no phrase was used more widely (and to
mean more different things!) than “rule of law”. Part of the problem with any defini-
tion is that the expression has no succinct and definitive meaning; that the expression
may be used to accord with the writer’s “interest” in an issue; and that the expres-
sion may change over time. The problem is exacerbated by a recognition by some
writers of a broad definition of rule of law (“thick” rule of law) encompassing such
concepts as human rights19 which contrasts with a minimalist “thin” approach which
recognises the impermanence and historical/geographical variation of human rights
and seeks to restrict the rule of law to fewer, generally agreed, precepts.20
The following21 well summarises the difficulties:
The ‘rule of law’ represents a symbolic ideal against which proponents of widely
divergent political persuasions measure and criticise the shortcomings of contempo-
rary State practice. This varied recourse to the rule of law is, of course, only possible
because of the lack of precision in the actual meaning of the concept; its meaning
tends to change over time and . . . to change in direct correspondence with the
beliefs of those who claim its support and claim, in turn, to support it.22
Nowhere was this statement more accurate than during the “Occupy Central”
controversy of 2014. Opponents of the Occupy movement indicated that since the
occupation was illegal, it undermined, per se, the rule of law. The assertion was
manifestly absurd, in the same way as it would be absurd to suggest that (illegal)
theft undermines the rule of law. The rule of law would, however, be at risk were
there to be, as alleged, “selective” enforcement of laws; prosecuting Occupy sup-
porters with vigour, for example, while ignoring police use of excessive force. The
clearly fallacious use of the expression by opponents of Occupy was highlighted by
Paul Shieh SC, outgoing Chairman of the Hong Kong Bar Association in his farewell
speech at the 2015 Opening of the Legal Year.23 Shieh said:
According to a report by the Hong Kong Examinations and Assessment Authority
published last November, many secondary school students [sic] misunderstood
the concept of ‘Rule of Law’ as merely meaning executing or obeying the law.
The report recommended that students should enhance their understanding of the
concept . . .
In a speech I delivered [last year] . . . I said the following:–
18. For the views of a former Hong Kong Chief Justice, see A Li, ‘The Rule of Law’ (2013) 43(3) HKLJ
43.
19. See T Bingham (Lord Bingham), The Rule of Law (Penguin Books 2011).
20. See, eg, J Raz, The Authority of Law: Essays on Law and Morality (Clarendon Press 1979).
21. In G Slapper and D Kelly, The English Legal System (14th edn, Routledge London and New York
2013–14).
22. Ibid 23.
23. 12 January 2015.
“There is no universal definition of ‘Rule of Law’. Many countries . . . claim to

practise the Rule of Law but in fact what they practise is not ‘Rule of Law’ as we
understand the concept but, at most, Rule by Law or a very rudimentary form of
Rule of Law namely that there shall be laws to regulate the conduct of individuals
and that they should obey the laws made by the sovereign.
. . . Comical as it may sound, the Government in Hong Kong has become accus-
tomed in recent years to preface almost every description of what it does by the
phrase ‘doing so according to law’ . . . Everything is done according to law.
. . . in my view and in the view of the Hong Kong Bar, ironically that could have
the opposite effect of misleading the public as to the meaning of the Rule of Law.
First, as we all know, Rule of Law means far more than just blind adherence to
laws—respect for an independent judiciary, the need to ensure minimum contents
of laws in terms of human rights protection, respect for the rights and liberty of the
individual when law enforcers exercise their discretionary powers are examples of
requirements of Rule of Law which go beyond just obeying the law. In fact it can be
said that over-emphasis of the ‘obey the law’ aspect of ‘Rule of Law’ is the hallmark
of a regime which is keen on using the law to constrain the governed, rather than as
a means to constrain the way it governs.”
. . .
In particular, in a system without a truly independent judiciary and where laws
are arbitrarily enforced, the judiciary and the executive ‘co-operate’ to ensure that
laws are interpreted in a way preferred by the executive and are used to suppress
persons or entities who do not find favour with the Government. This is often
dressed up as ‘Rule of Law’, but is in fact ‘Rule by Law’. ‘Do things according to
law’ means ‘do things according to our will’.
All the leading speakers at the 2015 Opening of the Legal Year gave prominence
to the “rule of law”; particularly pertinent with the “Occupy Central” movement still
to the fore. The stance of Secretary for Justice, Rimsky Yuen, however, leant more
towards what Shieh would have described as “rule by law” or “obedience to law”,
stating: “the law remains the law and is there to be obeyed.”
Ip24 describes this approach as one of “mere legality” (“yifa”); a concept that
“falls noticeably short of the rule of law standard” and talks of an “alarming” increase
in the use of this limited definition of “rule of law” by Hong Kong public officials.
This rather narrow approach to rule of law is perhaps to be expected of a
member of the government and is far less objectionable than the risible views of a
previous Law Society president, Ambrose Lee, expressed some months later. The
latter managed to depict a connection between the “Occupy” protests and the subse-
quent robbery and kidnapping (for ransom) of the granddaughter of Bossini founder,
Law Ting-pong. The kidnapping, apparently perpetrated by mainland criminals, was
evidence to Lee of a “reduced fear of the law”, inspired by “Occupy”.
The Chief Justice, Geoffrey Ma, in his Legal Year Opening speech, emphasised
three features of the rule of law: “equality, fidelity to the law and its spirit, and
24. Eric Ip, Law and Justice in Hong Kong (2nd edn, Sweet & Maxwell 2016) 129.
judicial independence”. The political neutrality of the judiciary he saw as epitomised

by equal treatment for all “parties” in the Occupy scenario.
Despite the difficulty of a definitive definition there are, as Shieh implies,
certain features of a “rule of law” society which would distinguish it from others.
“Primacy” of law is one such, as is “equality” before the law. An independent judici-
ary is essential in this context, since equality requires the protection, by the courts,
of the individual from the excesses of the more powerful state. It is also implicit in
Shieh’s statement that, despite its claim to a “rule of law”, the PRC (unlike Hong
Kong) practises rule “by law” rather than rule “of law”. Indeed, as we shall see, the
PRC leadership explicitly rejects certain tenets of the liberal-democratic concept of
“rule of law” as examples of Western “erroneous thought”.
Before moving on to individual features of the rule of law, as enjoyed in Hong
Kong, it should be noted that “rule of law” is, everywhere, an “ideal” form. All
polities claiming to be guided by the rule will fall short of this ideal on occasion.
No one, for example, could seriously claim that rich and poor are treated alike in the
criminal justice system of the United States.25 Likewise, it could hardly be argued
that the litigant in person (unable to afford private legal representation but denied
legal aid on financial grounds) has equal access to the law as the rich (or legally
aided) litigant. The key point is whether deviation from the ideal is regarded as
malign and deserving of improvement.
11.2.1 The rule of law: The “primacy” of Law

A key feature of the rule of law is the primacy of law. This means that law takes
effect over and above political considerations; it is not secondary to them. Of course
it may be that common law systems fall short of their ideals in practice, and permit
political considerations to impinge on judicial decisions, but this will be exceptional
rather than normal practice and deserving of criticism.
It can be asserted with some confidence that the Hong Kong courts have gen-
erally given their judgments without thought for the political implications. In his
speech at the Opening of the Legal Year 2015, Chief Justice Geoffrey Ma asserted:
the administration of justice by the courts is not, nor can it be, influenced in the
slightest by extraneous factors such as politics or political considerations. The
courts and our judges apply only the law. The constitutional role of judges is to
adjudicate on legal disputes between parties. It is no part of the courts’ function
to solve political questions, but only to determine legal questions even though the
reason for bringing legal proceedings may be a political one.
. . .
25. A simple example can be seen from the disparity in capital sentencing between the rich and the poor.
Some would see the disparity in purely racial terms, but it could hardly be argued that the black (but
wealthy) OJ Simpson was dealt with unfairly by the criminal justice system.
The constitutional role of judges to apply only the law is reflected in those pro-
visions of the Basic Law dealing with the exercise of judicial power. Article 84 of
the Basic Law states simply that judges shall adjudicate cases in accordance with
the law. The Judicial Oath taken by all judges requires adherence to the law and the
safeguarding of the law without fear or favour.
Certainly there were political “implications” in the Democratic Republic of the

Congo (DRC)26 case (dealt with elsewhere) where it fell to be determined whether
Hong Kong courts should apply the more common “limited state immunity” doctrine
rather than the “full state immunity” doctrine as recognised in the PRC. There was a
political dimension to the case since the PRC government (or a satellite thereof) was
involved in massive infrastructure work in the DRC and clearly had an interest in the
DRC’s successful plea of state immunity against the (“vulture company”) plaintiff.
However, despite some criticism on “legal autonomy” grounds, a strong case can be
made for saying that Hong Kong’s Court of Final Appeal merely followed the clear
requirements of the Basic Law in seeking an interpretation of that law by the NPC
Standing Committee under Article 158.
Hong Kong, then, may sometimes fall short of its primacy ideals, but they
remain ideals to which it seeks to aspire. A strong contrast can be drawn with the
position in the PRC where law is always secondary to the rule of the Communist
Party. Indeed, it is part of Marxist ideology that law is always subservient to the will
of the dominant class; all that differs is the identity of the “dominant”. In capitalist
systems, runs the theory, law always supports the interests of the capitalist class.
Those legal innovations (case decisions, legislation) which appear adverse to the
capitalist cause are mere ideological tools to convince the oppressed that the law
is even-handed and to keep them from the path of revolution. In this context, E P
Thompson’s celebrated postscript to his work “Whigs and Hunters” has been of great
academic interest, positing as it does the “relative autonomy” of law and its capacity
not merely to “appear” to support the underdog but (sometimes) actually to do so.27
While the PRC has made great strides towards an increased emphasis on
“legalism” and a rudimentary “rule of law”, it has yet to recognise the primacy of
law over political considerations. Politicians still describe the PRC legal system as
“socialist” and consider that its essential function is to “serve the Party”. Professor
Albert Chen28 describes the:
dominance of the Party apparatus over the state, and the Party’s unwillingness to
subject itself to the supremacy and autonomy of the law.29
26. Democratic Republic of the Congo v FG Hemisphere Associates (2011) 14 HKCFAR 95.
27. Contrast, for example, George Jackson’s Soledad Brother, and the author’s notion of the capitalist
benefits of a move from “chattel” slavery to economic “wage” slavery, with Sian Rees’s Sweet Water
and Bitter, detailing the clear financial loss and huge loss of (seamen’s) lives resulting from Britain’s
determination to end the slave trade.
28. A Chen, An Introduction to the Legal System of the PRC (n 2).
29. Ibid 37.
Chen, however, adds optimistically that:

the supremacy of law rather than policy has not only won acceptance by consti-
tutional theory but is also gaining ground in practice as the Chinese legal system
evolves. A dynamic approach to the study of this system would recognise the
increasing authority of legal norms as distinguished from mere policy documents
issued by party and governmental authorities.30
Despite this progress, Chen, elsewhere, notes:

attempts by the ruling party to prevent the logic of the Rule of Law . . . from threat-
ening the political supremacy of the Chinese Communist Party, and to draw a dis-
tinction between the kind of Rule of Law that is being promoted in China from the
Rule of Law as it is understood and practised in Western liberal democracies.31
11.2.1.1 Equality before the law

A specific aspect of “primacy” is the ideal of “equality before the law”. This means
that all citizens (high or low) should be subject to the same law and treated alike,
irrespective of wealth and position. The principle that “all Hong Kong residents shall
be equal before the law” is enshrined in Article 25 of the Basic Law.
In his speech at the 2015 Opening of the Legal Year, noted above, Chief Justice
Ma spoke of the importance of recognising and enforcing human rights. He asked:
How is this achieved in reality? The starting point is an acceptance that everyone
is equal before the law. This includes everyone: the Government, the authorities,
members of the public. No person, group of persons or organisation can claim to be
above the law nor to enjoy any preferential treatment by the courts. This is key to the
notion of respect for the rights of other persons.
There are really two aspects to this: that even the most humble enjoy basic
rights, and even the powerful (including the government) are subject to the law. This
ideal is often found wanting in the common law world but it is at least espoused as an
“ideal”. A clear departure from the ideal clearly arises in relation to access to justice
since it can be seen that the rich enjoy better legal representation than the poor.32
America’s criminal justice system, for example, provides many examples of the rich
being treated more leniently and the poor being much more likely to be convicted
and, if convicted, to be more harshly punished.33 Again, though, this can be seen as
the system falling short of its ideals rather than abandoning the ideals entirely.
30. Ibid 96.

31. Ibid 59.
32. Sarony writes that that a “squeeze” on legal aid funding means that Hongkongers are not equal before
the law: N Sarony, ‘The Silk Purse’ South China Morning Post (Hong Kong, 29 April 2011). This
remains a problem even though financial eligibility rules have been relaxed since his article.
33. See 11.4 below.
Hong Kong, too, has fallen short of the ideal of equal treatment for all, though
such “lapses” have frequently been “extra-judicial”. The most shocking case was the
decision of the then Secretary for Justice, Elsie Leung, not to prosecute Sally Aw,
the chairman of Sing Tao Publishing Group (at the time, owners of the Hong Kong
Standard newspaper). The Group had deliberately exaggerated circulation figures
to encourage advertisers but, even though senior staff of the Hong Kong Standard
were prosecuted for conspiring with Aw to defraud advertisers, the Department
of Justice decided to take no action against Aw herself. The ostensible reason was
that a prosecution was “not in the public interest”. There was little doubt that Aw’s
position as a “friend to Beijing” as well as to then Chief Executive, Tung Chee Hwa,
was the determining factor. Indeed, Leung’s absurd explanation that a prosecution
might ruin the newspaper and cause the loss of jobs (itself a departure from equality
before the law) was further undermined by the newspaper ceasing publication soon
afterwards.34 Some 15 years later, Grenville Cross, Director of Public Prosecutions
at the time of the Aw case, asserted, in the South China Morning Post, that he had
disagreed with Secretary for Justice Leung over the issue at the time.35 Moreover, in
the same article, former government lawyer Andrew Bruce SC is quoted as saying
that prosecuting Aw “would have sent out a message that no one is above the law”.36
Thankfully, departures from the principle of equality have been relatively
rare since the departure of Tung Chee Hwa and Elsie Leung.37 Serious disquiet
was raised, at the time, over the allegedly over-lenient judicial treatment of Amina
Bokhary; convicted of assaulting the police (not for the first time) and refusing to
take a “breathalyser” test, but given a non-custodial sentence. The leniency was
based on Bokhary’s known mental health problems and her “good family” back-
ground. Bokhary is related both to (uncle) Kemal, then a Permanent Judge of the
Court of Final Appeal, and Ronald Arculli, a previous ExCo member. Criticism of
“unequal” treatment came, in this case, mainly from the pro-establishment camp,
eager for an opportunity to attack a relative of Hong Kong’s most liberal judge.38
Inequality, if it did arise in the Bokhary case, was in the form of greater lenience
for someone “from a good background”. This is quite common (and logical) in influ-
encing a sentencing court to move in the direction of “rehabilitation” rather than
“retribution”.39 However, since the recipients of rehabilitative sentences tend to be
34. It should be noted that there is now, again, a Standard in Hong Kong but it is under new management.
35. C Buddle, ‘Ex DPP Tells of Split over News Tycoon Prosecution’ Sunday Morning Post (Hong Kong,
17 November 2013).
36. Ibid.
37. Other notable “non-prosecutions” in the Tung-Leung era included the decision not to prosecute dis-
graced ex-financial secretary, Anthony Leung (who resigned having been found to have bought a
luxury car with notice of an impending tax hike announcement) nor Xinhua News Agency (Beijing’s
unofficial pre-1997 “consulate”) for breach of personal data rules.
38. Bokhary was, at the time, a Permanent Judge of the Court of Final Appeal and regarded as its most
independent member.
39. Those seen as having less family support tend to be perceived as less likely to respond to rehabilita-
tive approaches. “Stable home background” was also a factor in the Nicholas Tse case, discussed in
those who have already had more advantages in life, inequality (of opportunity) may
be seen to be the precursor of further inequality (of treatment in the criminal justice
system).40 “Equal treatment”, especially with regard to sentencing, is an elusive
concept. Is, for example, a person with a “good background” likely to suffer more in
prison than others? If so, should that justify a shorter custodial sentence? Would that
apply to convicted policemen, or even foreigners?41
Worrying echoes of the Leung/Aw scenario have resounded with the tardiness
in prosecuting policemen recorded on camera beating up an arrested and defenceless
“Occupy” demonstrator. The policemen involved were identified sufficiently clearly
to be immediately suspended from duty, yet a decision to prosecute was reached very
slowly and only after significant public criticism.42
While the PRC still refuses to recognise the “equality” of the citizen with the
State/CCP, it has begun to act against “personal” inequality43 in the legal sphere; not
least because this may become a locus for civil unrest. To take one example, it was
reported44 that in Qinyang those “outsiders” who invested more than $6 million were
given the status of “honorary citizen” which would ensure discounted medical treat-
ment, priority schooling and exemption from minor traffic laws! The scheme, it was
reported, was halted by Central Government following local complaints.
A public perception of the law favouring “the rich” clearly has implications for
social cohesion. Writing of the Hong Kong experience, Liu and Kuan45 write:
Legal cynicism, as measured by the belief that the rich were given favourable treat-
ment by the court, was connected with a pessimistic view of the future condition of
the Hong Kong people, a defeatist view of long-term planning, and an inclination to
adopt a passive attitude toward [sic] the future.46
Recognising the potential for social unrest, former paramount leader Deng
Xiaoping had said:
Chapter 3.
40. In the Court of Appeal (CA), Stock VP said it was “unfortunate” that sentencing magistrate Anthony
Yuen had referred to Bokhary’s “good background” but felt it had not affected the decision to impose
a non-custodial sentence (which the CA endorsed). Eventually, having broken the terms of her proba-
tion order, Bokhary did serve a short prison sentence.
41. See SNM Young, ‘Justifying Sentencing Discounts for Foreigners’ (2002) 31(3) HKLJ 369.
42. As evidence of the increasing polarisation in Hong Kong society, the sentences given to the con-
victed policemen, while on the low side by Hong Kong standards were seriously criticised by the
pro-establishment camp which seems to see nothing wrong with overt police brutality. In a rare Hong
Kong example of criticism of an over-harsh sentence, there were numerous personal attacks on the
“foreign” sentencing judge, Dufton J.
43. Article 33(2) of the PRC Constitution states: “All citizens of the People’s Republic of China are equal
before the law”.
44. D Harris, ‘Chinese Law Makes Some More Equal than Others’ Harris & Moure pllc, 27 May 2007.
45. Z Liu and H-C Kuan, The Ethos of the Hong Kong Chinese (Chinese University Press 1988).
46. Ibid 128.
Crimes committed by the children of high-ranking officials and celebrities need to

be treated urgently, for their bigger social impact and higher hazard.47
With the increasing economic inequalities in modern, post-Deng China, con-

siderable public disquiet had been voiced about the actions of cadres (and their
families), seemingly able to break the law with impunity. Huge publicity was given
to the eventual arrest, trial and conviction (for rape) of Li Tianyi, the son of two
famous cadres.48 Li, who like Ms Bokhary had been in trouble before, was convicted
as the prime mover in a gang rape of a woman the group had met in a bar.49 Li was
sentenced to 10 years imprisonment which, in the PRC, is a very low sentence for
such an offence. Again, the rationale was Li’s (youth and) good background, making
rehabilitation more likely. The Australian Broadcasting Company (ABC)50 reported
that:
In China the children of high-level Communist Party officials are seen by many as
being spoilt and above the law.
Li has become the most prominent target of these complaints.
The judgment of the court appears to have much to commend it. Li was not
only convicted, despite his parents’ eminence, but the court emphasised, for the
victim’s sake, that the case was one of “rape and not solicitation of prostitution”.51
Less laudable, given the public interest element, was the decision not to hold an
open trial,52 though this is often the case when juvenile defendants are on trial. There
is little doubt that there was government determination to have Li convicted, as
evidence of “equality before the law”, once public concern, and dislike of favourit-
ism, had been aroused. It is to be regretted that the prosecution case was not particu-
larly compelling53 and was presented behind closed doors.54
11.2.2 The rule of law: Separation of powers

Perhaps the greatest tension, in terms of the primacy of law, involves the question
of the independence and autonomy of the judiciary, an aspect of the so-called
47. Deng Xiaoping, Selected Works of Deng (People’s Publishing House 1993). Historically, this
approach has not always been the norm in China (in Qing law, for example, status affected penalties).
48. Li’s father is a PLA general and his mother a famous PLA singer.
49. While Li’s co-defendants pleaded guilty, Li lodged a defence based on the “consensual prostitution”
nature of the sex (which he also claimed to have been too drunk to remember!). The defence was
given some succour by the assertion by Tsinghua University Professor, Yi Yanyou, that “raping a
chaste woman is more harmful than raping a bar girl”: J Kaiman, ‘Chinese General’s Son in Gang-
Rape Trial’ The Guardian (London, 28 August 2013). Yi later apologised for his comments.
50. S McDonnell, ‘China Jails Famous Couple’s Son Li Tianyi for Gang Rape in “Second Generation
Rich” Case’ (ABC/Reuters, 26 September 2013).
51. Li’s co-defendants admitted that the victim had been unwilling to remove her clothes.
52. See 11.2.4 below.
53. Forensic evidence of sexual relations against Li was non-existent, for example.
54. For further discussion of “closed trials”, see 11.2.4 below.
“separation of powers”. This cornerstone of United States and (to a lesser extent)
British constitutional law is deserving of discrete discussion.
“Separation of powers”, in its purest sense, involves the recognition of three
pillars of a constitution: the “executive”, the “legislature” and the “judiciary”; each,
ideally, separate from, and independent of, the others and all acting as a system of
“checks and balances”.55 The “ideal” concept of separation of powers is of ancient
origin, owing much to the work of Locke and Montesquieu around 300 years ago.56
It is worth noting, before considering the extent to which the PRC and the Hong
Kong SAR conform to the ideal of separation of powers, that the “ideal” is just that.
In practice no constitutional system has a perfect separation of the three “pillars” and
foolproof checks and balances do not exist. Indeed, it has been suggested that the
British system which Montesquieu used as his exemplar fell far short of his “separa-
tion” ideal since:
[the] formulation by . . . Montesquieu, was based on an analysis of the English con-
stitution of the early eighteenth century but an idealised rather than a real English
constitution . . . No writer of repute would claim that it is a central feature of the
modern British constitution.57
To look, first, at the United States system; it is clear that the legislature
(Congress) has a “checking” function on the executive arm. Classic examples are to
be found in the failed attempt of the Clinton administration to introduce universal,
affordable health care (introduced by President Obama and enacted only after intense
debate and opposition). In extreme circumstances Congress may even remove an
errant President, via the “impeachment” procedure.58 The President, via his power of
veto, may curb the power of the legislature. Even in the case of agreement between
executive and legislature, the judiciary, in the form of the Supreme Court, has the
power to overturn legislation; not on the grounds of unpopularity but on the basis of
its “unconstitutionality”.
However, two examples may be used to show that even the United States system
does not correspond to the “ideal” form. First, judges in America are not entirely
apolitical. Locally, they are elected and run for election on overtly political grounds.
Moreover, judges who make unpopular decisions may well forfeit re-election.59 In
the highest court of all, the Supreme Court, vacancies are filled by judges nominated
by the President (though Congress may reject the nomination). The “legal realist”
55. Writers have questioned whether “checks and balances” are integral to the British constitutional
system but they are certainly a pillar of the United States one.
56. See J Locke, Second Treatise of Civil Government (written in 1690, available widely in e-form) and
Montesquieu, The Spirit of Law (written in 1748 [Batoche Books Canada 2001]).
57. S De Smith and R Brazier, Constitutional and Administrative Law (revised 7th edn, Penguin 1999).
58. This almost happened to Presidents Andrew Johnson and Bill Clinton (both impeached but acquitted)
and would have happened to President Richard Nixon but for his resignation.
59. Questioning the legality/constitutionality of the death penalty is a definite “vote-loser” in most US
states (not least Texas: see 11.7 below).
school of socio-legal researchers has, indeed, focused on the politico-economic

background of Supreme Court judges and asserted a correlation between the “world
view” of a particular Supreme Court bench and the outcome of the case before it.
One important postscript should be added, however, since it is relevant to a consid-
eration of the PRC situation: Supreme Court judges are “permanent appointments”
and can only be removed on the grounds of gross misbehaviour.60 This has led even
clear political appointees to abandon, on principle, the anticipated wishes of their
“patrons” free from concern as to the (employment) consequences.
A second, distinct “special case” is the wealth of “emergency” power that the
President possesses and, in the Bush (younger) years, exercised, leading to com-
plaints of an increasingly executive-led government. Under the Trump administra-
tion such complaints have increased.
To consider the British situation, there have been notable deviations from the
ideal of separation, though some have been (belatedly) rectified. The (executive)
Prime Minister is also a Member of Parliament (the legislature) as are members of his
Cabinet. The (judges of the) House of Lords exercised, for hundreds of years, both
a legislative function (as members of the “Upper House”) and, of course, a judicial
one. Indeed, at one time all members of the House of Lords were free to exercise
a judicial function, though few non-judicial Lords did so in practice. The Head of
the House of Lords, the Lord Chancellor, even donned three hats since he was, in
addition to being head of the House of Lords and the Judiciary, also a member of
the Cabinet. The Lord Chancellor and Law Lords anomaly, indeed, was the chief
cause of the abolition of the House of Lords’ judicial role and its replacement by the
Supreme Court.61 Mention should also be made of the “political” nature of judicial
appointments in Britain since, traditionally, judicial appointments have been made
either by, or on the advice of, the Lord Chancellor (a member of the cabinet) or the
Prime Minister. Indeed, Griffith’s62 conclusion is that:
The most remarkable fact about the appointment of judges [in Britain] is that it is
wholly in the hands of politicians.63
However, while in theory judicial appointments in Britain are still by the sov-
ereign on advice from the Lord Chancellor64 or Prime Minister, in practice the
determination is made by a Judicial Appointments Commission (JAC) (established
in 2005) except for appointment to the Supreme Court.65 Indeed, the Prime Minister
60. They are said to be appointed “dum bene gesserunt” (as long as they behave well).
61. As a result of the Constitutional Reform Act, 2005.
62. JAG Griffith, The Politics of the Judiciary (Manchester University Press 1977).
63. Ibid 17. A notable example was Prime Minister Thatcher’s insistence on the appointment of Sir John
Donaldson as Master of the Rolls.
64. The Lord Chancellor’s role has also been significantly modified since, while he may also hold the
position of Secretary of State for Justice, he is no longer the senior member of the judiciary nor is he
the Speaker (Head) of the House of Lords (see Constitutional Reform Act 2005).
65. New appointments to the Supreme Court (the original Justices being the former ‘Law Lords’) are
nominated by a differently constituted Committee, reflecting the United Kingdom (rather than
English) dimension of the Supreme Court’s work.
is required to put forward to the sovereign the candidate nominated by the JAC. The
JAC is required to appoint solely on merit.66
As to “checks and balances” in the British system, many political commenta-
tors have lamented the erosion of Parliament’s authority in the “Blair years”, with
an almost total absence of debate in the House of Commons particularly. “Prime
Minister’s Question Time” has been particularly affected, with the event now largely
a stage-managed selection of pre-approved questions. Post-Blair his legacy remains
and serious Parliamentary debate remains rare.
Moreover, the British judiciary lacks the power, existing in the United States, to
overturn legislation on the basis of its unconstitutionality. The rationale has always
been that Parliament is “sovereign” and may enact laws as it sees fit. The role of the
judiciary is merely to interpret and apply the legislation that has been enacted. It
is true that, with Britain’s membership of the European Union (formerly European
Community) “sovereignty” has been eroded (or, it could be argued, at least indefi-
nitely suspended) given that senior judges may now declare domestic legislation
to be incompatible with EU law. Moreover, the judiciary does have the power to
declare legislation incompatible with the Human Rights Act 1998. However, it is
perhaps still too early to talk of the British judiciary as a significant “check” on
the legislature. What is shared with its American Supreme Court counterparts is the
British judiciary’s “security of tenure”, which goes some way to ensuring that politi-
cal considerations do not need to weigh heavily on the judges when they make their
judgments.
Turning now to the Hong Kong situation, it is clearly recognised that its politico-
legal system is, and always has been, “executive-led”. The British colonialists ruled
Hong Kong largely via the Executive Council (ExCo) which comprised hand-picked,
largely pro-government figures, generally representing big business and other vested
interests. While “opposition” figures might be co-opted, this was never such as to
prevent the enactment of legislation which the colonial government (directly or “on
orders from London”) wished to introduce. The less powerful Legislative Council
(LegCo) was dominated by appointed officials and the representatives of the so-
called “functional” constituencies; again predominantly pro-business. The small
measures to extend the functional franchise and increase the number of directly
elected LegCo seats, introduced by last Governor Patten, were immediately nullified
on 1 July 1997. While, therefore, it is possible to identify three distinct branches in
Hong Kong’s constitutional set up, it can scarcely be claimed that they are of equal
“counterbalancing” force. Virtually all legislation in Hong Kong emanates from the
executive and “member’s legislation” is almost unknown, especially post-1997.67
LegCo, it is true, has a limited power to slow down the executive’s legislative pro-
posals but, even here, controversial legislative moves, such as the arrangements for
66. Though it should “have regard” to the need to encourage diversity.

67. See Chapter 4.
the exorbitant and dubiously necessary “runway three”,68 are taken via the procedure
of the Chief Executive in Council, ousting LegCo’s oversight role. Moreover, given
the guaranteed majority of the pro-government forces, most “government” legisla-
tion is, in practice, enacted eventually irrespective of opposition voices.69 Only in
respect of matters involving major constitutional change is LegCo able to hamper
government initiatives, since these require a two-thirds LegCo majority.70
Similarly, while the Hong Kong Judiciary is appointed apolitically71 and has
‘security of tenure’ (like its English counterparts),72 it has limited power to overturn
legislation on the basis of unconstitutionality generally. In this respect Hong Kong’s
judges are in a position more akin to their brethren in Britain than those in the United
States. It was, formerly, intended that the Bill of Rights Ordinance (BORO) would
give the Hong Kong judges a limited power of oversight in respect of legislation,
since they had the right to construe prior legislation in a manner compatible with
BORO. Moreover, in the absence of compatibility, such legislation could be struck
down. This “superior” status of BORO was abolished on the grounds of inconsist-
ency with the Basic Law.73 More important, at least in theory, is the Hong Kong
judiciary’s power to declare legislation inconsistent with the Basic Law itself. The
superior status of the Basic Law, unlike that of BORO, is of course uncontentious.
However, the unfortunate experience of the Hong Kong judges in attempting to strike
down the “right of abode” legislation, enacted by the Provisional Legislative Council,
on the basis of its inconsistency with the Basic Law,74 indicates that further declara-
tions of “unconstitutionality” by the Hong Kong courts (as opposed to the Standing
Committee of the National People’s Congress) will be adopted with caution. The
Court of Final Appeal has made such decisions, though, without controversy in such
areas as declaring unconstitutional (as contrary to the Basic Law) legislation restrict-
ing the court’s “right of final adjudication”.75
68. The third airport runway proposal has huge environmental costs and there is clear evidence that the
current runways are not being operated to capacity and that nearby competition is rapidly increasing.
69. Only “people power” (as with mass opposition to government-proposed Article 23 legislation) has
been able to halt the government juggernaut.
70. Democrats were able to prevent the passage of the government’s so-called “reform package” which
was to give everyone in Hong Kong a right to vote for one from two to three candidates selected by
a hand-picked 1,200 strong “nominating committee”. Even such limited obstructive power has now
been reduced following the disqualification of six elected pan-democratic legislators (discussed at
4.4).
71. Article 92 of the Basic Law requires that judges be appointed (solely) on the basis of their “judicial
and professional qualities”. The only, very limited, exception to the principle of appointment on
merit is the nationality requirement for the Chief Justice and the Chief Judge of the High Court (see
Chapter 6).
72. See Chapter 6.
73. Exercising the power conferred by Article 160 of the Basic Law, the Standing Committee of the NPC
abolished ss 2(3), 3 and 4 as incompatible with Article 8 of the Basic Law.
74. See Chapter 4.
75. See A Solicitor v Law Society of Hong Kong & Secretary for Justice [2003] HKCFA 14, discussed in
Chapter 3.
In serious contrast, the concept of “separation of powers” is not recognised in

the PRC’s civil/socialist legal system; or at least it is felt, by the PRC leadership,
inappropriate to such a system. Indeed, in its official statement of February 2015,76
the PRC Supreme People’s Court stressed that:
[the country] must preserve the judicial system of socialism with Chinese character-
istics . . . [rejecting] Western judicial independence and the separation of powers.77
The PRC Constitution emphasises the leadership of the Chinese Communist

Party, to which law, and legality, are formally subject. Moreover, the line separating
the “executive” and “legislative” organs of government is blurred. Nor, in relation to
“primacy”, is there provision for the courts to strike down legislation on the grounds
that it offends the Constitution. Indeed, the PRC Constitution makes clear that the
role of interpreting and enforcing the Constitution is that of the NPC Standing
Committee not the courts. A single, “lowly”, attempt to overturn local legislation
on the grounds of its conflict with national legislation was attempted by (the now
famous) Judge Li Huijuan. While determining a contract dispute over the quantum of
damages in a dispute over the (non) delivery of seeds,78 the judge stated, in Luoyang
Municipal Intermediate People’s Court (Henan Province), that the local mechanism
for assessing seed price must be rejected as in conflict with the national seed law. It
was reported that:79
Judge Li defended her decision by citing Article 64 of China’s Law on Legislation
which provides that ‘where a national law or administrative regulation enacted by
the state has come into force, any provision in the local decree which contravenes
it shall be invalid.’
At the insistence of an angry Henan Province People’s Congress, Judge Li was

initially removed from office; though later reinstated following significant public
concern. PRC constitutional lawyers have, generally, opined that Judge Li’s action
was improper, since the right to review constitutionality resides solely with the
NPC Standing Committee. Nonetheless, some sympathy was expressed given the
difficulty and delay involved in seeking the Standing Committee’s intervention.80 It
appears that the more common, and less controversial, approach to these conflicts is
for the court to apply the higher statutory authority and simply ignore (rather than
76. Supreme People’s Court (Party Leadership Group), 10 February 2015.

77. The two concepts were described as examples of “the West’s erroneous thought and mistaken
viewpoints”.
78. For further discussion, see M Zhang, Contract Law: Theory and Practice (Martinus Nijhoff 2006)
15–24.
79. China Law & Governance Review, Luoyang City ‘Seed Case Highlights Chinese Courts Lack of
Authority to Declare Laws Invalid’ (2004) Case Files No 2 June 2004.
80. A judge should first refer the matter to the Supreme People’s Court (Article 90, Law on Legislation).
That court may then refer any conflict to the NPC Standing Committee which has the power to annul
local laws under Article 67 of the PRC Constitution. In practice referrals to the Standing Committee
are rare and resulting action rarer.
reject) the lower one.81 The “Judge Li” case, while of humble origins, gained great
notoriety, not least amongst opponents of the PRC system. The New York Times feted
Judge Li (and her “rags to riches” ascent to the bench) and described the case as one
of “youthful ideals meet reality”.82 It continued:
‘The authority of the National People’s Congress is not to be challenged’ said Mao
Yinduan, head of the legal office, in an interview. ‘The judge . . . had every right to
choose which law to use. But courts have no right in a verdict to say which law is
valid.’
. . . [yet] China’s Law on Legislation stated that local laws that conflicted with
national laws should be abolished. [Li] thought including this point in her opinion
was within her judicial purview.
The swift reinstatement of Judge Li illustrated considerable sympathy for her

plight, not least amongst legal academics in China. Balme and Lihua write:83
the affair attracted important controversies about the constitutional status of the law
referred to [the Law on Legislation]84 and about the procedure.
Essentially, however, the issue was one of procedure rather than substance: the
role of the PRC judge in civil cases is to adjudicate as between the parties, not to
determine the constitutionality of legal rules. Judge Li was entitled to follow the
correct legislative rule. She was not, however, free to criticise the incorrect rule,
since that is a matter solely for the Standing Committee.
The role of the PRC courts remains similarly circumscribed even 10 years after
the Judge Li case. Moreover, even within the limits prescribed, and despite rapid
moves to provide judges with greater freedom from political interference, such
freedom remains significantly limited.
11.2.3 The rule of law: Judicial independence and autonomy

A specific aspect of separation of powers, important enough to warrant separate con-
sideration, is the issue of judicial independence and autonomy. Tsang85 writes:
What sets [Hong Kong] apart from the PRC more than anything else is the existence
of the rule of law and an independent judiciary.86
81. This was indeed the practice adopted by the Henan High Court which reheard the case.
82. Yardley J, ‘A Judge Tests China’s Courts, Making History’ New York Times (28 November 2005).
83. R Balme and Y Lihua, ‘The Politics of Constitutional Reform in China: Rule of Law as a Condition of
or as a Substitute for Democracy?’ in F Grotz and T Toonen (eds), Crossing Borders: Constitutional
Development & Internationalisation (De Gruyter Berlin 2007) 170.
84. Especially Article 64 thereof.
85. S Tsang, ‘Commitment to the Rule of Law & Judicial Independence’ in S Tsang (ed), Judicial
Independence & the Rule of Law in Hong Kong (Hong Kong University Press 2001).
86. Ibid 1.
In Britain this is underpinned by the “security of tenure” of judges, who may

act without fear of the political and employment consequences and give judgment
“according to law”. As we have seen, similar security of tenure is enjoyed by the
Justices of the United States Supreme Court. Security of tenure comes, of course,
at a price. It is difficult to remove a judge from office on the grounds of incompe-
tence (as opposed to venality) and both in England and Hong Kong there have been
examples of judicial incompetence in respect of which formal sanctions are almost
non-existent. Zander87 talks of the Lord Chancellor (now President of the Supreme
Court) having a “quiet word” with judges who act incompetently and there is little
doubt that an “interview” with former Hong Kong Chief Justice, Andrew Li, would
have been an unpleasant experience for a judge felt not to have acted with due care
and attention.88 Nonetheless, security of tenure for the (untypically) incompetent is
felt to be a reasonable price to pay to ensure judicial integrity and impartiality. As
Zander89 writes:
Calls for the judge’s dismissal are wide of the mark. A judge cannot, and should not,
be at risk of dismissal for incorrect decisions. That would threaten the essence of the
independent judiciary.90
Judges in Hong Kong enjoy a similar security of tenure to their British counter-
parts. A key component of the general continuation of Hong Kong’s existing legal
system, post-1997 (prescribed by the Basic Law), was that:
The courts of the Hong Kong SAR shall exercise judicial power independently, free
from any interference. Members of the judiciary shall be immune from legal action
in the performance of their judicial functions.91
Moreover, judges then in post would be permitted to continue “post-1997” (irre-

spective of their nationality),92 their conditions would be “no less favourable”,93 and
the removal of judges (other than via retirement or resignation) would be exceptional
and effected only by special procedures.94 While the judicial system in Hong Kong
has not been immune to “political” considerations, there has been no indication of
any member of the judiciary being swayed by threat or inducement.95 It is true that
the recent sentences of imprisonment on pro-democracy legislators (with its result-
ant tipping of the LegCo balance of power) produced a “pro-government” outcome.
87. M Zander, A Matter of Justice (Oxford University Press 1989).

88. This was undoubtedly the case for Judge Pang, the “judge who changed his mind” (see Chapter 10 at
10.1).
89. A Matter of Justice (n 87).
90. Ibid 130.
91. Article 85, Basic Law.
92. Article 93, Basic Law.
93. Ibid.
94. Articles 89 and 90, Basic Law.
95. A greater threat has been “political” considerations in determining whether or not to prosecute; as in
the infamous “Sally Aw” case (see Chapter 13).
This does not mean, however, despite international concern to the contrary, that
Hong Kong’s judiciary has become politicised.96 In the Court of Final Appeal, which
has been the subject of significant judicial-political analysis,97 statistics98 have shown
clearly that the court has been more than prepared to make decisions unpopular to
the Hong Kong government.99 Gittings100 states that:
Where the critics were right is in forecasting that Beijing would have difficulty
learning to live with a court that—unlike its counterparts on the mainland—takes
seriously the concept of judicial independence . . . [however . . .] The lack of reaction
to the CFA’s more recent rulings suggests a recognition that, like it or not, Beijing
has learned to live with the reality of an independent judiciary in Hong Kong.101
Implicit in Gittings’ statement, however, is the lack of full independence for the
judiciary in the PRC. Chinese political leaders frequently praise the more accom-
modating approach of the Macau judges and their co-operation with the executive,
as opposed to the “difficult” judges of the Hong Kong SAR (especially those of the
Court of Final Appeal). The conceptual difference in perception of the judge’s role,
as between Hong Kong and the mainland, is exemplified in the furore surrounding
the publication, by the PRC State Council, of a “White Paper” on “One Country,
Two Systems”. The description of judges as “administrators”, who should be “patri-
otic”, seemed uncontentious to the PRC “side” yet was regarded as highly sinister
by many in Hong Kong. Outgoing Hong Kong Bar Chairman, Paul Shieh, stated:102
I now address the publication of the White Paper by the State Council in June 2014.
A lot of controversies focused on whether judges were correctly characterized as
“administrators” of Hong Kong. The matter was blamed on translation. However,
the real problem with the relevant part of the White Paper is that irrespective of
translation, judges perform judicial tasks independently. The sovereign state
should not purport to impose any ambiguous political requirements, such as to be
“patriotic”103 or to “safeguard the country’s development interests”.
96. See K Macdonald, ‘Legality Is Vital to Upholding the Rule of Law’ South China Morning Post
(Hong Kong, 5 September 2017); C Buddle, ‘Shock and Law’ South China Morning Post (Hong
Kong, 27 August 2017); C Lau and J Hollingsworth, ‘Judiciary in the Dock’ South China Morning
Post (Hong Kong, 25 August 2017).
97. Much of this was presented at a conference entitled ‘Hong Kong’s Court of Final Appeal: The
Andrew Li Court 1997–2010’ at the University of Hong Kong, 5–6 March 2010; later published as
Young and Ghai (eds), Hong Kong’s Court of Final Appeal: The Development of the Law in China’s
Hong Kong (Cambridge University Press 2014).
98. Especially those provided by Professor Simon Young. See SNM Young, ‘Final Appeals Then and
Now’ in Young and Ghai (eds) (ibid).
99. According to Young, op cit, roughly half of appeals involving the Hong Kong government have been
determined against it. The record of the Macau CFA has been far more “subservient”; cf Godinho
and Cardinal, ‘Macau’s Court of Final Appeal’ in Young and Ghai (eds) (n 96).
100. D Gittings, ‘Changing Expectations: How the Rule of Law Fared in the First decade of the Hong
Kong SAR’ Hong Kong Journal, 1 July 2007.
101. Ibid 3.
102. Speech of Chairman of the Hong Kong Bar Association at the Opening of the Legal Year 2015.
103. Especially since Hong Kong’s judges need not be Chinese (see Chapter 6).
. . . the White Paper sends a wrong message to the people of Hong Kong and
the international community as to the role of the judiciary in Hong Kong. It also
shows a gap in mindset. In systems subscribing to our concept of Rule of Law, the
Government does not paternalistically issue edicts for judges to perform political
tasks. This mentality may be commonplace on the Mainland, but it is inappropriate
here.
Indeed, while PRC leaders may, reluctantly, accept the independence of the
judiciary for Hong Kong, they are far from accepting it as a proposition for the
PRC.104 In the first place, implementation of a truly independent judiciary in the
PRC is hampered by constitutional restraints since, while Article 126 of the PRC
Constitution provides that courts:
exercise judicial power independently, in accordance with the provisions of the law,
and are not subject to interference by any administrative organ, public organisation
or individual.
This is subject to Article 128 which states that:

The Supreme People’s Court is responsible to the National People’s Congress and
its Standing Committee. Local People’s Courts at various levels are responsible to
the organs of state power, which created them.
While, following the Law on Judges (2000),105 the judiciary is viewed as a

separate organ, with separate rights and obligations from other state organs, and
while improvements to qualification and training are integral to the developing judi-
ciary, the subservient position of the courts is constitutionally maintained. One of the
criteria for judicial office is that the judge “supports the Constitution of the People’s
Republic of China”;106 which includes, of course, reference to, “the leadership of the
Communist Party of China” and adherence to “the socialist road”. Senior judges are
appointed by the People’s Congress107 (or the Standing Committee thereof)108 or, in
the case of local People’s Courts, by local People’s Congresses on the advice of the
local President of the Court. Even though new appointments to the judiciary are now
recruited “on merit”109 via a standard, unified public examination (the State Judicial
Examination, introduced in 2002)110 their numbers are still relatively small in com-
parison with those recruited previously, often with little legal expertise or training.
104. Article 126 affirms: “The People’s Courts shall, in accordance with the law, exercise judicial power
independently.” However, the “removability” of judges, performance assessment and remuneration/
promotion processes create significant indirect pressures (see J Cohen [n 111]).
105. Or Judges Law, depending on translation.
106. Article 9, Law on Judges.
107. In the case of the President of the Supreme People’s Court (SPC).
108. On the recommendation of the President of the SPC.
109. This criterion, however, encompasses both “ability and political integrity”.
Moreover, in the context of judicial autonomy, the process of appointment is less

significant than the rules on removal. Removal may be, at the local level, by local
People’s Congresses and, at the State level, by the National People’s Congress (NPC).
Judges may be removed for “incompetence”, failure to perform judicial duties, lack
of qualification, absenteeism and refusal to accept a transfer.111 Moreover, “promo-
tion and rewards” are dependent on annual “performance reviews”. It is clear that
the potential to remove, or at least deny promotion to, a judge on political grounds is
a real one. The problem is far more acute at the local level of which Cohen,112 writing
in 2006, said:
Judges are hired, paid, promoted and fired by local officials . . . increasing numbers
are now fresh out of law school and inexperienced in both law and life. Usually
decisions in nonroutine [sic] cases are made by administrative superiors within the
court rather than the customary panel of three judges who hear the case . . . Outside
agencies . . . frequently influence rulings behind the scenes.113
Indeed, then, true judicial autonomy, as understood in the common law world,
is not even an “ideal” in the PRC system (much less a reality). Article 5 of the Law
on Judges explains that the function of a judge includes “to take part in a trial as a
member of a collegial panel”. Moreover, under Article 7(7) there is a duty to “accept
legal supervision and supervision by the masses.” The PRC Constitution itself pro-
claims that:
The Supreme People’s Court is responsible to the National People’s Congress and
its Standing Committee. Local People’s Courts at different levels are responsible to
the organs of state power which created them.
In short, judicial independence and autonomy exist currently neither in theory

nor in practice. Nonetheless, as with all issues of law and legalism in the PRC, things
are changing fast. The “professionalism” of judges, a key component of respect for,
and the autonomy of, the judiciary, has been rapidly enhanced. The first step towards
professionalisation, the Law on Judges, was not enacted until 1995 and before that
“judges in mainland China were treated as cadres of the state”.114
In the relatively few years since the Law on Judges, the status of judges has
changed so that they are regarded as “separate” from other state officers; rules on
qualification and training have been introduced; and, crucially, protections have been
introduced to defend judges from political interference and to guarantee their security
of tenure. With the increasing proportion of judges appointed via an open, unified
and competitive examination system (with the establishment of a Commission for
Examination and Assessment of Judges charged with the training and assessment of

112. J Cohen, ‘China’s Legal Reform at the Crossroads’ Far Eastern Economic Review (Hong Kong,
March 2006).
113. Ibid.
114. Chen (n 2) 135.
judges) and with increasing moves towards central control of judicial appointments,
there is room for cautious optimism. The advantage of having discontent vented in
court rather than on the streets is obvious in a country as vast and disparate as China
and this fact alone is likely to produce improvements in the quality of judicial selec-
tion, training and adjudication.115 Clear examples of the will to change and improve
can be seen in the introduction of a Second Five Year Reform Programme for the
People’s Courts (introduced by the Supreme People’s Court in 2004) and by the
introduction of extensive programmes aimed at improving the professionalisation
of the Chinese judiciary.116 Most recently, in July 2014, the Supreme People’s Court
announced a (fourth) Five-Year Reform Plan to Enhance Judicial Independence.
The Plan seeks (inter alia) to improve selection processes for judges; to restrict the
influence of local governments; to enhance judicial transparency; and to improve
the administration of the courts. Among the more specific proposals,117 it is sug-
gested that cases involving local environmental issues be held in superior courts
or those outside the affected area; that circuit judges be appointed to assist local
judges in difficult cases; that judicial performance be better monitored; that illegally
obtained evidence be excluded; and that information on hearings be made available
in advance to allow public attendance. The Economist118 describes an increasingly
professionalised system in which well-qualified judges will receive substantial pay
increases while the “old guard” judges (without qualifications) will be downgraded.
The power of the State, under President Xi Jinping, is being brought to bear
against corruption, and it is clear that attempts to “influence” judges for corrupt
motives are frowned upon. In that sense efforts are being made to increase the “inde-
pendence” of the judges. At the same time, a full separation of powers is not to be
contemplated. The dilemma faced by the PRC leadership is summarised in the New
York Times article inspired by the “Judge Li case”.119 It notes:
Faced with the complex demands of governing a chaotic, modernizing country,
China’s leaders have embraced the rule of law as the most efficient means of
regulating society. But a central requirement in fulfilling that promise lies unre-
solved—whether the governing Communist Party intends to allow an independent
judiciary.120
Ten years later that theme is repeated by Cary Huang, writing in the South China
Morning Post.121 He says:
115. Well-reported cases in 2010 of attacks on judges have illustrated the connection between respect for
the judiciary and social stability.
116. Eg, the Judicial Studies Training Programme (JSP) involving a collaboration between Britain and
the Supreme People’s Court and similar collaborative schemes to improve judicial management.
117. There are 45 proposals in all.
118. The Economist, ‘Judging Judges’ (London, 26 September 2015).
119. See 11.2.2 above.
120. J Yardley, New York Times (n 82).
121. C Huang, ‘Party Faces Catch 22 with Attempts at Judicial Reform’ South China Morning Post,
‘What the Mainland Media Say’ (Hong Kong, 5 April 2015).
In an effort to implement the legal reforms announced at last October’s party

plenum, the central government has published new measures under which all offi-
cials who interfere in judicial cases will be publicly named.
Officials will be seen to have broken the rules if they tell judges how to handle a
particular case, or ask court officials to meet litigants or defendants privately.
While hailing this development as a step forward in promoting the rule by law,
[sic] state media have also cast doubt about how feasible it will be to implement
within the existing legal system.
. . . the Legal Daily said it was time to draw a red line so people knew interfer-
ence would no longer be tolerated and also make clear the division between execu-
tive power and the judiciary.
China’s legal system is known to have been dogged by a lack of transparency,
weak enforcement and allegations of rampant corruption. At the centre of the
problem is the lack of ‘judicial independence’ . . .
. . . President Xi Jinping has put legal reform at the top of his agenda, includ-
ing finding ways to reduce local governments’ direct control over the courts and
prosecutors.
Yet the concept of ‘judicial independence’ has also come under fire during Xi’s
leadership . . .
Currently China’s judiciary is subject to a variety of internal and external
controls that greatly limit the ability of the courts to make independent decisions.
At the moment, local courts and prosecutors are considered part of the civil
service and are financed and administered by local governments. This means local
governments often try to interfere in court cases.
. . .
The party wants to give judges and prosecutors greater independence . . . while
not wanting to see the kind of separation of powers between the party and judiciary
that has the potential of challenging the party’s absolute grip on power.
Comment
Herein lies the dilemma for the PRC leadership. “Corrupt” attempts to influence
judges are not to be tolerated and the “independence” of an increasingly profes-
sional judiciary willl be maintained, except in the case of politically sensitive cases
(a minority) where influence aimed at maintaining the primacy of the Chinese
Communist Party (CCP) must continue to be brought to bear. However, since most
local government “influencers” are also CCP members, the distinction between
acceptable and unjustified interference is difficult to ascertain.
The judicial independence/CCP supremacy dichotomy is reflected in compet-

ing messages from the higher echelons. The Supreme People’s Court, in October
2013, issued a paper stating that the PRC must “rid its courts of corruption and stop
officials interfering in decisions” yet, little more than a year later, Chief Judge Zhou
Chiang, delivering the Court’s report to the annual plenum meeting of the National
People’s Congress,122 asserted that:
We must unify the three tasks of maintaining the leadership of the party, treating the
people as masters and ruling the country according to law, unswervingly walking
the path of socialist rule of law with Chinese characteristics.
He went on to add that the PRC must: “Reject Western notions of ‘judicial inde-
pendence’ and ‘separation of powers’ [indicative of] the West’s erroneous thought.”
Zhou emphatically repeated these sentiments in a speech to provincial judges on
14 January 2017.123
The concept of a fully “independent” judiciary in the Western sense remains,
therefore, far away. However, the more optimistic view is that, leaving aside the
rhetoric, substantive moves are being made to improve the quality and independ-
ence of the judiciary.124 It remains to be seen whether significant action results from
these proposals. Indeed, pessimists would point to indications that, under the presi-
dency of the reactionary Xi Jinping, the move towards judicial independence, in the
“separation of powers” sense, has stalled or even gone into reverse. In this vein, Qian
Gang125 writes:
Following the recent Fourth Plenum on rule of law (or, as some would prefer, rule
by law) the crux of official ‘interpretations’ loudly promoted in Party media was
the Party’s leadership of so-called rule of law . . . ‘constitutionalism’ was roundly
attacked, so too was ‘judicial independence’ . . . in the wake of the Fourth Plenum,
a gnawing fear of constitutionalism, of the checking of power . . . seems to have
gripped China . . . as the gloves come off, as ‘judicial independence’ becomes the
target of open hostility, the Party’s declarations about ‘the independent and fair
exercise of the powers of trial and prosecution’ can only become naked falsehoods.
And all efforts at judicial reform in China can only become wasted energy.
Comment
While the Qian Gang “pessimistic” view appears to reflect the current mainland
situation, more worrying for Hong Kong is the current emphasis, by PRC spokes-
men, on the “subservience” of the Hong Kong courts to a Chief Executive holding a
position “transcending” the executive, legislature and judiciary in an “executive-led”
122. Concluding remarks, 15 March 2015. Prompting S Lubman, ‘Questions Loom over China’s Legal
Reform Drive’ Chinarealtime (17 March 2015).
123. See C-y Choi, ‘Chief Justice Unleashes Legal Storm’ South China Morning Post (Hong Kong, 18
January 2017).
124. Kuhn, for example, emphasises improvements in the financing of the judiciary and the judicial
appointments system: RL Kuhn, ‘How US Critics Misread China’ South China Morning Post (Hong
Kong,4 October 2015).
125. Qian Gang, ‘Who Gave “Judicial Independence” a Death Sentence?’ China Media Project (Hong
Kong, 14 January 2015).
system.126 Some of the most emphatic statements in this context have been made by
Zhang Xiaoming, head of the highly influential CPG’s Hong Kong Liaison Office. It
is reassuring that current Chief Justice, Geoffrey Ma, while of course not entering
into political “debate”, has emphasised the Basic Law’s endorsement of an inde-
pendent judiciary and equality of all before the law.127
11.2.4 The rule of law: Right to a fair trial

The right to a fair trial involves basic issues of natural justice; in particular, that an
accused has the right to be heard128 (and generally to be legally represented) and that
the adjudicator should have no “interest” in the outcome (the “neutrality” princi-
ple). The right to be heard, of course, means that both parties to a civil action have
a right to fully present their case to the court. More significantly, perhaps, in any
criminal case (or disciplinary proceedings) the “defendant” should have the right
to know precisely the nature of the offence with which he is charged and to present
his defence, personally or via his legal representative. If the accused is convicted,
this should be on the basis of the evidence produced in court, rather than on his
“character”. Any sentence, of course, should be based on a penalty prescribed in
advance for the offence in question. These principles have developed with the evolu-
tion of the common law and, although they have not always been recognised, they
are of significant longevity within the common law world.129 The “interest” rule, that
“no one should be a judge in his own cause”, would require, for example, a judge
who is related to the accused (or who has reason to dislike him) to stand down.130
The “interest” rule is important, too, in relation to the decision to prosecute. In
most cases,131 the Hong Kong decision to prosecute is taken independently132 by the
Department of Justice (DOJ). An important contrast can be seen with approaches to
corruption where Hong Kong has investigation by the independent ICAC, followed
by a further filter of the DOJ’s decision as to prosecution.133 The PRC battle against
corruption is, conversely, often seen as “selective” and a tool to bring down politi-
126. See G Cheung, ‘Why Beijing Is Laying Down the Law’ South China Morning Post (Hong Kong, 16
September 2015) and S Lau and J Ngo, ‘Authority of HK Chief Is Above All: Beijing’ South China
Morning Post (Hong Kong, 13 September 2015).
127. J Ng, ‘Hong Kong Chief Justice Geoffrey Ma Transcends Political Debate but Stands up for
Separation of Powers’ South China Morning Post (Hong Kong, 21 September 2015).
128. Sometimes described by the Latin maxim “audi alteram partem”.
129. To take two examples: the “right of silence” derived from the old English common law rule that
the accused was not permitted to speak in his own defence; further, the ancient English jury was
selected precisely because it knew the defendant and could base its verdict on his known character.
130. Standing down is known as “recusal”. The most spectacular example of the wrongful failure of a
judge to recuse himself involves Lord Hoffmann (Re Pinochet [1999] UKHL 52).
131. The Securities and Futures Commission’s power to investigate and prosecute has been criticised as
an anomaly.
132. Though the “independence” of Secretary for Justice, Rimsky Yuen, on political issues in which he
has a clear “interest” has been called into question (see Postscript).
133. Not to mention external scrutiny by no fewer than four independent advisory committees!
Postscript
It is some time since this text was originally submitted. In the meantime, there have
been significant developments. While specific changes have been flagged in indi-
vidual chapters, it is the mood in Hong Kong engendered by such changes which is
most noteworthy.
Completing the circle, if we look back to Chapter 1 and the interface between
“optimistic” and “pessimistic” expectations for 2047, what is most striking is how
unrealistically optimistic the “optimistic” forecasts were. Few now seriously believe
in “two systems” post-2047. Optimists now hope for some semblance of two systems
to survive until 2047.
The chilling tone of the CPG’s 2014 White Paper, “explaining” the PRC’s
“comprehensive jurisdiction” over Hong Kong and the description of our once proud
judiciary as civil servants required to be “patriotic” and love China, has set the frame-
work for the end of two systems; the pieces are now being rapidly put into place.
Examples abound of PRC interference with Hong Kong’s promised “high
degree of autonomy”. No one seriously believes, for example, that the road bridge
to Zhuhai was a “local” Hong Kong idea; merely one disproportionately financed by
Hong Kong taxpayers. We now have the spectre of a convenient road link between
Macau and Zhuhai being financed largely by Hong Kong, but to which most Hong
Kong people will be denied access.
What is sometimes termed “mainlandisation”, but (barrister and former
Democratic Party leader) Martin Lee has called “Tibetanisation”, increases apace.
Over two million mainland citizens will have settled in Hong Kong between 1997
and 2047 via the so-called “family reunion” system, administered entirely by the
PRC. This does not include the thousands of mainland business employees in
banking, trade, policing (unofficially) and the armed forces. Only mass protest has,
thus far, prevented the introduction of so-called “national education”, intended to
buttress “patriotism” and “love of China”. However, with the imminent introduction
of compulsory “Chinese history” (no doubt highly selective) for schools, only the
label will actually be different.1
1. See below. The SCMP has reported that, in a clear affront to two systems, the PRC’s education
minister has called on Hong Kong teachers to do “a better job of instilling patriotism in the city’s
Postscript 589
No end is in sight for Hong Kong’s chronic housing problem. This is presented
as a shortage of land but is actually a shortage of affordable housing. Since only
mainland buyers can afford good quality housing in Hong Kong, a legislative curb
on “external” purchasing could solve the problem at a stroke. Since this would upset
the government’s friends in the property industry (on either side of the boundary) the
political will is lacking. Nor will the government use “agricultural” land for public
housing in the New Territories, since this would involve confronting the vested
interests of the Heung Yee Kuk whose soi-disant “indigenous” villagers demand the
retention of their “small house” rights on the spurious ground that these are protected
by the Basic Law.2 Instead, the government via its so-called “Citizens Task Force
on Land Resources” offers Hong Kong people the calamitous choice of building
on country parks or yet more unnecessary land reclamation at the taxpayer’s huge
expense.3 Yet while over-priced housing remains as before, the “beneficiaries” have
changed. The once despised “local” property barons are now rapidly giving way
to those from the mainland. Once regal Lee Ka-shing rationalised his property and
business empire and re-located much of it prior to retirement.
There have been other examples of the erosion of “two systems”, many involv-
ing assaults on the Basic Law itself. It now appears that the joint checkpoint (“co-
location”) arrangement, whereby PRC officers will apply all mainland law in a
specially designated part of the check-in area for the new Hong Kong–Guangzhou
high speed train, is a fait accompli. This despite its apparent conflict with Article 18.
This Article clearly states that mainland laws will not be enforced in Hong Kong
unless listed in Annex III and locally enacted. While the PRC’s right to add to the
Annex III list of applicable laws is recognised in Article 18, there is no provision for
the application of all mainland laws in one area of Hong Kong rather than another.
The insistence on all mainland laws being enforced at the checkpoint area (rather
than merely immigration ones) is legally dubious and unnecessary, given that those
about to board will subject themselves to PRC law as soon as they arrive on the
mainland. Co-location supporters have been unable to produce a convincing and
youth”: V Zhou, ‘Love Country First, HK Teachers Told’ South China Morning Post (Hong Kong,
24 February 2017)].
2. See Chapter 2.
3. The government’s latest choice appears to be the environmentally disastrous creation of an artificial
island and the consequent destruction of most of Lantau. Chief Executive Carrie Lam has already
shown her contempt for public opinion by stating, while the “consultation” process is ongoing, her
preference for the awful artificial island option; despite its inevitable environmental destruction and
cost/completion date overruns. For a succinct academic destruction of the artificial island plan see
T Yam, ‘Next white elephant’ South China Morning Post (Hong Kong, 21 August 2018) showing
that the sole beneficiaries of the plan will be the government’s business friends. Lest this critique
be considered “anti-government” note agreement with the sentiment by a normally pro-government
journalist: A Lo, ‘Just forget any East Lantau mega project’ South China Morning Post (Hong Kong,
23 August 2018). Predictably, and without waiting for the Task Force’s Report, Carrie Lam has
announced plans for a huge “East Lantau” reclamation.
consistent legal argument4 and the Hong Kong Bar has expressed serious concern.
While the effects of co-location are not per se worrying, there is a fear that this
cession of Hong Kong jurisdiction to the mainland may be the “thin edge of the
wedge”. Should we next expect mainland laws to be applied in the “Lok Ma Chau
Loop”, on the basis that most businesses actually operating there will be Shenzhen
ones?
Further, Article 27’s guarantee of freedom of speech and publication sits uneasily
with the abduction from Hong Kong and elsewhere of those publishing or distribut-
ing material critical of the PRC leadership,5 and the same may be said of Article
28’s rejection of “arbitrary arrest”.6 Moreover, as newspaper publication becomes
increasingly “mainlandised”, freedom of the press, except in online form, is rapidly
eroding. To take just one example, Alibaba’s Jack Ma now owns Hong Kong’s main
English-language newspaper, the South China Morning Post (SCMP). This journal
has campaigned to amend the “one share, one vote” company law regime which saw
Ma (who insists on power without financial risk) unable to list on the Hong Kong
Stock Exchange. Legal change to introduce Ma’s preferred variable voting rights has
now been effected.7 To his credit, SCMP writer Jake Van der Kamp has opposed the
legislative change and maintained an independent stance. However, editorial “influ-
ence” is evident in a change of tone by other SCMP writers. Alex Lo, for example,
who not long ago wrote that Hong Kong people were right to be concerned about
the joint rail checkpoint,8 now supports it and asks what all the fuss is about. The
excellent Philip Bowring, often critical of the government, has been marginalised
and, with notable exceptions,9 coverage has become increasingly pro-establishment.
Most disheartening of all, especially for young people, has been China’s refusal
to honour its Article 45 pledge to (ultimately) introduce genuine universal suffrage in
Hong Kong. China’s version of universal suffrage offered to Hong Kong for the 2017
Chief Executive “election” involved the selection of two or three candidates (by a
Committee of 1,200) who, with the blessing of at least half of the Committee, could
then be voted on by all. LegCo rejected China’s offer and prospects for genuine
democracy in Hong Kong now appear dim.
This cynical version of universal suffrage saw thousands on the streets as part
of the brave but doomed “Occupy Central” movement. Numbers swelled rapidly as
scenes of police excesses were witnessed. After 79 days no concessions on the “fake
democracy” package were obtained. Official retribution has been slow but harsh;
4. Li Fei, head of the Basic Law Committee, has said there is “no single Basic Law Article justifying the
move”, and leftist academic, Professor Albert Chen, has admitted this is a “grey area”.
5. See Chapter 12.
6. Ibid.
7. On 2 January 2018 the SCMP proclaimed that there had been an IPO boost based partly on the
introduction of two-class shares. [cf L He, ‘After a Poor Year, HK Set for IPO Boost’ South China
Morning Post (Hong Kong, 2 January 2018)].
8. See Chapter 12.
9. To the name of Vanderkamp may be added some others, notably special projects editor, Cliff Buddle.
Postscript 591
with democracy supporters imprisoned and elected democrats removed from the
Legislative Council on various legal grounds.10 At the time of going to press, the
additionally vindictive step of reclaiming LegCo salaries (to bankrupt the former
members and thereby render them ineligible to stand) has just been abandoned by
the Hong Kong government; not for altruistic reasons but on legal advice that the
claim was likely to fail.
International support for Hong Kong’s democracy movement has been muted;
China is a powerful country and a wealthy potential trading partner. Such support for
Hong Kong as has been voiced has been distressingly ill-informed. Former Governor,
Chris Patten, has urged China to honour its Joint Declaration promises on democ-
racy. In fact, none exist; the promise of an ultimate universal suffrage is to be found
in the Basic Law not the Joint Declaration. Foolishly, “external” pro-democrats have
also questioned Hong Kong’s judicial independence in the light of the imprison-
ment of LegCo members involved in the Occupy protests. The jailing, effected
via a successful Department of Justice appeal to the Court of Appeal against the
non-custodial sentences initially imposed, was controversial. However, while some
judicial comments in the Court of Appeal were undoubtedly intemperate,11 it is too
soon to assert that the judiciary has become politicised.12 What is undeniable is that
the decision of then Secretary for Justice, Rimsky Yuen, to seek a review of sentence
was an egregious affront to the principles of natural justice.13 Proper procedures may
have been followed14 but there can be no denying that Yuen, as a member of the
government, had a professional interest in the imprisonment of the members; which
reduced opposition to the government in LegCo. Moreover, Yuen had a personal
interest, given “Occupy’s” rejection of the “fake democracy” package which he had
been (jointly) tasked with “selling” to Hong Kong.15 No clearer example could be
seen of the need for a genuinely independent prosecutorial body.16 Implicit criticism
of Yuen’s professional judgement (though not his political motivation) is to be found
in the Court of Final Appeal’s determination that the application for sentence review
should have been refused.17
The developments outlined above have had a significant effect on morale in
Hong Kong; especially among the young. “Localism” has been a desperate response
10. By-elections to fill the now vacated seats have yet to be held and the government has made hay in
the meantime; with its supporters changing LegCo rules of procedure to prevent the slowing up of
unpopular legislation by the “opposition”.
11. In particular, those of Wally Yeung JA.
12. See, in strong defence of the judges, G Cross, ‘A Just decision’ South China Morning Post (Hong
Kong 30 August 2017).
13. Which dictate that no one should be a judge in his own cause (see chapter 13).
14. See R Yuen, ‘Facts of the Case’ South China Morning Post (Hong Kong, 24 August 2017).
15. Along with current Chief Executive, Carrie Lam and Raymond Tam, Secretary for Constitutional and
Mainland Affairs.
16. See Chapter 13. It remains to be seen whether Yuen’s successor, Teresa Cheng, will adopt a more
independent approach.
17. [2018] HKCFA 4 at para 106.
to what is perceived as a desperate situation. The booing of the Chinese national

anthem by localists at football matches has led to the introduction of the mainland
anthem law into Hong Kong law (implemented by local legislation). While this need
not be, in itself, an issue of great concern, more worrying has been the call from
some in the establishment camp to give this legislation retrospective effect. This
would conflict with both Hong Kong’s Bill of Rights and Article 39 of the Basic
Law.18 While the retrospective proposal is likely to be resisted, its very suggestion
indicates the scant regard for the rule of law held by its proponents.
“Optimists” may hope that the views expressed here are merely jaundiced and
anti-establishment. Note, then, the views of establishment journalist Alex Lo who
writes:19
mainlandisation is going full steam ahead with cross-border integration. We are
in the midst of an infrastructure-building boom with showcase projects . . . joint
customs and immigration clearance anyone?
In education, Chinese history is being made mandatory again, and versions of
national education are being revived. In the legislature, a loyalist majority in being
entrenched. The list goes on.
Xi really does deserve full credit for a policy towards Hong Kong that is com-
prehensive, total and inevitable.
Not to be outdone in the “being realistic” stakes, Michael Chugani concludes an

article on Hong’s future20 with the words:
As we head into the future, your choices are limited. Stand up for the national
anthem, recognise Hong Kong as part of red China, and kiss genuine democracy
goodbye . . .
If you can’t bring yourself to do that, there is just one other alternative: pack up
and leave.
Is it any wonder that our young people are losing hope, especially those for
whom to “pack up and leave” is not an option?
MJF April 2018
18. See C Buddle, ‘Beware the Ills of Retroactive Punishment’ South China Morning Post (Hong Kong,
2 November 2017).
19. A Lo, ‘Give Xi Credit for an Inevitable HK Policy’ South China Morning Post (Hong Kong, 18
October 2017).
20. M Chugani, ‘HK’s Democracy Dream Is Dead under Red China’ South China Morning Post (Hong
Kong, 14 December 2017).
Index
Access to Justice, 367–372, 394–400, Article 24, 84, 85, 98, 171, 224–226,
469–474 232–234, 296, 297
Act of State, 38–43, 60, 67, 69, 134–136, Article 25, 439
170, 223, 232 Article 26, 85
Alternative Dispute Resolution, 401–431, Article 27, 83, 84, 86, 555, 590
476–482 Article 28, 532
Adjudication, 430, 431 Article 29, 534
Arbitration, 405–415, 476–480, 495–502 Article 31, 532
Mediation and Conciliation, 416–430, Article 35, 309, 370
477–482 Article 39, 35, 36, 83, 592
Aw, Sally, 94, 440, 449, 557–560 Article 40, 54, 83, 86, 88–93, 115, 117
Article 44, 85
Basic Law (Hong Kong) Article 45, 54, 57, 85, 173, 526, 590
Amendment of, 46, 99, 100 Article 46, 137, 227, 485, 486
Article, 1 57 Article 48, 225
Article 2, 45, 60, 70, 137, 490, 525 Article 57, 547
Article 5, 43, 55, 56, 61, 62 Article 63, 553, 555, 557, 561, 564
Article 8, 43–46, 59–62, 64, 70, 100–109, Article 64, 212
112, 113, 116, 173, 174, 176, 212, Article 66, 65, 176–178
239, 240, 242, 250, 432, 490, 567, Article 68, 178
569 Article 73, 179, 194
Article 9, 70, 157–161 Article 74, 190
Article 12, 60, 137 Article 80, 103
Article 13, 230 Article 81, 45, 60
Article 17 25, 67, 173, 185 Article 82, 60, 102, 103, 109, 280, 300
Article 18, 10, 25, 46, 49, 60, 62, 68–70, Article 84, 95, 118, 121, 131, 244, 260,
173, 177, 212, 240, 242, 260, 432, 269, 291, 432, 438
524, 589 Article 85, 95, 285, 296, 449
Article 19, 38, 42, 69, 137, 170, 230, 231, Article 86, 339, 355, 360, 362–364
236, 260, 506, 525 Article 87, 486
Article 22, 41, 84, 98, 225, 226, 296, Article 88, 279, 284
505 Article 89, 285, 449
Article 23, 26, 42, 43, 71–83, 377, 446, Article 90, 279, 282, 449
512, 526, 527, 535 Article 92, 285, 300
596 Index
Article 93, 160, 449 Leung, C Y, 96, 341, 387, 526, 547,
Article 95, 489, 490, 492, 493, 496, 502, 548
518 Role and Functions, 27, 34, 38, 65, 67,
Article 96, 503 99, 124, 134–136, 149, 150, 170,
Article 158, 97–99, 170, 171, 223–235, 174, 179, 180, 183–187, 189–191,
250, 295, 299, 438 225, 233, 268, 279–282, 284–286,
Article 159, 2, 46, 97, 99, 100, 490 294, 372, 446, 503, 511, 531, 547,
Article 160, 44, 62, 63, 65, 66, 212, 222, 548, 557
446 Status, 455
Enactment 27 Term of Office, 53–55, 137, 138, 227,
Interpretation of, 30, 41, 45, 69, 84, 85, 485, 486
97–99, 122, 137, 138, 154, 170–172, Tsang, Donald, 89, 182, 194, 355, 485,
174, 175, 194, 223–235, 250, 560
295–299, 360, 438, 459, 483–486, Tung Chee Hwa, 46, 72, 82, 86, 137, 227,
524, 525 296, 305, 440, 485, 526
(as a) Source of Hong Kong Law, 60, Chief Judge of the High Court, 32, 33,
70–100 160, 214, 242, 245, 272, 274, 279,
Status, 36, 63, 66, 67, 70 280–285, 287, 293, 353
“Big Spender”, 458, 464, 505–509, 522 Chief Justice (Hong Kong)
Bill of Rights (Ordinance), 23, 36, 63, 66, Eligibility, Appointment and Removal, 33,
67, 70, 104, 147, 211, 219, 221–224, 93, 335, 336
266, 295, 363, 370, 378, 383, 387, 409, Li, Andrew, 121, 161, 162, 166, 167, 171,
446, 458, 467, 531–533, 535, 555, 592 172, 214, 241–251, 260, 268, 271,
Bokhary, Amina, 165, 166, 169, 440–442 282, 284, 298, 300, 337, 369, 398,
Bokhary J, 38, 156, 171, 172, 203, 224, 404, 417, 435, 449, 457, 477
225, 230, 231, 258, 262, 293, 298, 299, Ma, Geoffrey, 49, 56, 120, 230, 234, 261,
310, 409, 516 282–284, 293, 298, 300, 418, 419,
(The) “Booksellers”, 86, 507, 509, 512, 523 436–439, 456, 477
Role and Functions, 105, 124, 134–136,
Cantonese (use of in the courts), 45, 145, 146, 155, 158, 161, 179, 278–280,
146, 157–161, 346–348, 366 285, 286, 295, 332, 355, 388, 395,
Capital Punishment, 130, 163, 164, 443, 446
461, 465–470, 489, 504, 509, 525 Chief Secretary for Administration
Captain Elliot, 2–7, 113, 115 Chan, Anson, 28
Proclamations, 3–7, 113, 115 Hui, Rafael, 340, 361, 548
Chancery (see Equity) Lam, Carrie, 82, 233, 298, 526
Chek Lap Kok Airport, 23, 31, 425, 430 Role and Functions, 374, 485
Chief Executive (Hong Kong) Tsang, Donald, 137
Appointment, 14, 16, 21, 28, 51, 71, 93, Chinese (PRC) Law
100, 173, 179, 182, 525, 526 As a Source of Hong Kong Law, 60, 63,
(S) Election Committee/Nominating 68, 69, 175, 177, 566, 576, 577, 589
Committee, 28, 29, 51, 54, 85, 446, “Co-location” (Collocation), 69, 94, 142,
526, 590 177, 589, 590
Eligibility, 26, 29, 48, 85, 153 Not Generally Applicable in Hong Kong,
Lam, Carrie, 26, 54, 341, 526, 527, 589, 49, 52, 60, 62, 68, 69, 71, 83, 177,
591 490, 589
Index 597
Chinese (PRC) Legal System Court of Final Appeal, 25, 30, 32, 33,
Contrasted with Hong Kong System, 37, 38, 41, 45, 46, 49, 50, 60, 68, 95,
432–488 97–99, 102, 103, 105, 108, 109, 118,
Interface with Hong Kong System, 122, 123, 129, 133–137, 153, 155, 156,
489–527 160, 165, 170, 171, 174, 203, 214, 215,
Civil Law 219, 223–234, 236, 239–241, 244, 245,
(In) China (PRC), 434, 447, 459, 486, 247–251, 254, 258, 259, 261, 264,
488, 489 268–271, 276, 278–282, 291, 293,
Civil and Criminal Law Contrasted, 102, 295–297, 299, 300, 308, 310, 320, 321,
129, 130 324, 336, 341, 376, 381, 386, 394, 395,
(And) Common Law (see Common Law), 409, 411, 412, 438, 440, 446, 450, 457,
100, 101 486, 490, 493, 495, 515, 561, 563, 567,
Common Law 581–583, 591
(And) Civil Law, 100, 101 Appointment, Removal, Retirement of
Declaratory Theory of, 8, 103–109, 116, Judges, 32, 33, 134–136, 172, 179,
131, 259, 289, 290 262, 271, 278–286, 300
Equity Contrasted, 100, 101 Autonomy (and Limits), 30, 45, 99, 135,
Meaning(s), 100–103 155, 156, 170–172, 224–235, 260,
Preservation post-1997, 10, 46, 47, 60–62, 290, 296–301, 450–451, 525
100–103, 105–109, 567 Final Adjudication, 45, 49, 60, 95, 97,
(As a) Source of Hong Kong Law, 59, 60, 102, 103, 105, 108, 133, 136, 137,
100–109 170, 174, 250, 409, 446, 490, 567
(And) Statute Law, 101 Interpretation of Basic Law, 45, 97–99,
System(s), 105–109 137, 170–175, 223–235, 250,
Communist Party (PRC) 295–297, 438, 525
Supremacy, 296, 434, 438, 439, 447, 451, Overseas Judges, 55, 122, 123, 156, 161,
453, 454 165, 269–271, 274, 280–282, 293,
Conditional and Contingency Fee, 337, 300
338, 368, 369, 390–392, 398 Role and Powers, 25, 37, 129, 133–138
Confucius/Confucianism, 477, 478 Court of First Instance
“Congo” Case (see Basic Law And Jury Trials, 138–140, 340, 363, 464,
Interpretation), 41, 97, 171, 228–231, 563
283, 438 Language of the Court, 160, 344, 345, 363
Convention of Peking (1860), 2, 12 Precedent Status, 251, 252
Convention of Peking (1898), 2, 3, 12 Role and Functions, 138–141, 145–147,
Court of Appeal (England), 111, 123, 217, 150–155, 199, 213, 220, 221, 229,
240, 249, 253, 256–259, 262, 291, 341, 241, 275, 293, 386, 394, 408, 409,
348, 409, 483, 566, 568, 570, 572 420, 423, 458, 495, 514, 563
Court of Appeal (Hong Kong), 5, 25, 34, Cross-Border Crime, 458, 505–512,
44, 98, 131–133, 138, 143, 152–155, 518–525
160, 165–167, 213, 214, 229, 230, Cross-Border Insolvency, 490, 512–517
240–243, 245–252, 259–261, 268, 269, Cultural Revolution, 364, 433, 465, 478,
273–275, 278, 283, 293, 300, 301, 308, 530
317, 320–322, 324, 341, 375, 382, 394, Customary Law, 1, 48, 59–61, 63, 87–93,
495, 515, 561, 591 113–118, 240, 266, 566
598 Index
Delegated Legislation 8–10, 46, 59, 61–63, 92, 100, 102,

Creation of, 191–193 109–114, 240, 566
Definition, 191–193 Executive Council (ExCo), 7, 27, 48, 173,
Researching and Citing, 573, 574, 576, 179, 183, 184, 186, 294, 445
578
As a Source of Law, 92, 122, 175, 566 Falun Gong, 42, 72, 77, 82, 83, 172, 293,
Deng Xiaoping, vi, 15, 20, 51, 441, 442, 489 460, 468, 526
Department of Justice Functional Constituencies, 31, 96, 174,
Independence, 41, 456, 529, 551–562, 178, 179, 181, 189, 294, 445
564, 591
(Application for) Review of Sentence, Genn (Hazel, Dame, Professor), 130,
138, 165–167, 300, 301, 529, 561, 402–404, 418, 419, 477
591 “Golden Rule” (see Statutory
Role and Functions, 42, 81, 93, 163, 183, Interpretation), 201, 202, 208, 218
185–188, 190, 269, 293, 299, 305,
354, 407, 414, 440, 456, 498 “High Degree of Autonomy” (for Hong
Director of Public Prosecutions Kong), 16, 21, 37, 50, 52, 53, 60, 70,
Cross, Grenville, 162, 163, 165, 167, 168, 71, 137, 138, 155, 170, 173, 177, 296,
440, 459, 547, 551, 556, 559–561 490, 525, 588
Zervos, Kevin, 299, 314, 395, 544, 559, Hong Kong Courts
560 Precedent Status, 236–252
Due Process Structure, 129–133, 152–155
(And) Crime Control, 356, 464, 521, 527 Hong Kong Government
Meaning, 408, 413 Executive-led, 27, 64, 65, 174, 179, 287,
(In) PRC, 460, 464, 504, 509, 518, 527 294, 444, 445, 455, 456
Durkheim, E, 169, 465, 466, 468 Hong Kong Judiciary
Appointment, Removal, Retirement,
Elliot, Elsie 32, 33, 93, 94, 135, 179, 271–274,
(see Tu, Elsie) 277–287, 296, 300, 446, 449
English Law Background, 261, 265, 271, 280, 282,
(Continuing) Influence, 60, 120, 121, 261 286–290, 292, 293, 444
Reception of, 4–10 Independence and Autonomy, 45, 49, 155,
Researching, 567–576 294–301
English Legislation Manpower Shortage, 272–278, 282
Amending English Common Law, 9, 10, Hong Kong Legislation
63, 64 Adaptation and Localisation, 28–31
Researching, 573–576 Amendment of Law via, 8–10, 46, 47, 49,
(as a) Source of Hong Kong Law, 5–10, 61, 63–67, 103, 105, 113, 117
29, 44, 63–66 Legislative Process, 180–191, 194
Status, 63–66 Limits on Autonomy, 25, 69, 70, 109
Equity Researching and Citing, 578–580
History, 109–112 (as a) Source of Hong Kong Law, 64–67,
Jury, 358, 359, 361 177–180, 566
Meaning, 100, 101, 109, 110, 569 House of Lords (Judicial Committee of
Practice and Procedure, 109, 110 the)
(As a) Source of Hong Kong Law, Precedent Position, 50, 103, 104,
Index 599
107–109, 123, 131, 132, 237, 239, Role and Function, 342–343
240, 243–245, 249, 250, 253, 259,
260, 263, 264, 288, 290, 291 Kowloon Walled City, 11, 12, 142, 143
(And) Purposive Interpretation, 203–215
Replacement by Supreme Court, 131, Law Reform Commission of Hong Kong,
241, 569 123–128
Lack of Prompt Statutory Response to,
Independent Commission Against 127, 188, 212, 354
Corruption (ICAC), 14, 28, 93, 309, “Laws Previously in Force” (see Article 8
318, 393, 394, 456, 518–522, 529, 530, Basic Law)
533, 541, 544–549, 551, 559, 560, 587 Lay Participation in the Hong Kong Legal
International Covenant on Civil and System
Political Rights (ICCPR), 26, 35, 36, (The) Jury, 339–364
66, 73, 81, 83, 222, 378, 470 Lay (Special) Magistrates, 366
International Covenant on Economic, Lay Prosecutors, 365, 366
Social and Cultural Rights Lee, Martin, 39–41, 55, 57, 71, 231, 467,
(ICESCR), 35, 73, 83 588
(Court) Interpreters, 45, 161, 346, 366 Legal Aid and Advice
Ip, Regina, 26, 71, 78, 79, 82, 95 (and) Access to Justice, 337, 338,
367–372, 385–401, 469–477
Joint Declaration (On the Hong Kong Administration, 368, 372–374
Question), 12, 15–29, 31, 32, 34, 35, Civil Legal Aid, 367, 377–381
38, 39, 44, 48, 52, 53, 61, 72, 73, 86, Criminal Legal Aid, 367, 374–377
135, 157, 193, 279, 489, 591 Duty Lawyer Service, 383–385
Joint Liaison Group (Sino-British), 18, 21, Eligibility for, 163, 237, 337, 367, 369
29, 37, 135, 226, 280, 300 Supplementary, 367, 381–382
Judicial Precedent Legal Profession (Hong Kong), 302–338
Binding (Stare Decisis), 236–243, 248, Barriers to Entry, 302, 305–307, 326, 330,
249, 251, 252, 263–266 331
Hierarchy of the Courts, 236, 239–250, Barristers, 312–320
252, 411 Discipline and Regulation of, 320–324
Law Reporting and, 237, 266, 267 “Fusion” Debate, 334–337
Obiter Dicta, 103, 237, 238, 261 Legal Education and Training, 325–334
Persuasive (Non-binding), 244–247, Legal Executives, 338
259–261 Rights of Audience
Ratio Decidendi, 103, 236, 237, 245, 252, Solicitors, 303–312
254–258 Legal Research (Introduction to), 565–587
(The) Jury Online, 565, 566, 571–573, 576, 577, 579,
Basic Law and, 95, 339, 355, 360, 581, 582, 587
362–364 Researching English Law, 567–576
Criticisms of, 162, 360–362 Researching Hong Kong Law, 578–587
Eligibility for Service, 343–346 Researching PRC Law, 576–578
“Equity”, 358, 359 Legislative Council (LegCo)
Limited Use, 340, 341 Constitution, 94, 113, 177–180
Representativeness, 347–354 Eligibility and Ineligibility (for), 48, 69,
Research on, 356–358 85, 234, 561, 590, 591
600 Index
Limited Role, 27, 64, 65, 173–175, 178, New Territories

180, 190, 194 Customary Law, 54, 61, 83, 86–96,
Members’ Bills, 188–191 115–118
(the) “Through Train” (Abandoned), 25, (1898) Lease, 1, 2, 11, 14–16, 19
31 Sovereignty, 11, 12, 21
Legislative Process (Hong Kong), 180– New York Convention (re Arbitral
191 Awards), 409, 410, 479, 495, 496
Letters Patent (and Royal Instructions),
7, 44, 64, 176 “One Country, Two Systems”, vi, 20, 21,
Li, Rebecca, 547, 548 30, 43, 48, 49, 51–56, 60, 61, 76, 78,
“Literal Rule” (see Statutory 83, 99, 175, 177, 227, 229, 287, 293,
Interpretation) 296–298, 336, 432, 450, 489–491, 505,
Litigants in Person (Unrepresented 506, 508, 510, 516, 524, 589
Litigants), 367, 369, 384, 388–390,
397, 399, 477 Palmerston (Lord), 1–3, 113
“Localisation” (and Adaptation) of Parliamentary Sovereignty, 104, 208, 445,
Previous Laws, 28–31 573
Lord Chancellor (United Kingdom), 110, Patten (Last Governor), 22, 25, 29, 31, 32,
444, 449 39, 40, 66, 98, 135, 445, 546, 591
Pepper v Hart (see Statutory
Macau Interpretation)
Basic Law, 26, 484 Plea Bargaining, 167, 168, 316, 464
Court of Final Appeal (TUI), 257, 300, PRC Constitution, 69, 70, 122, 434, 441,
450, 457 447, 448, 451, 452, 459–461, 463, 480
National Security Law, 26, 82, 512, 526 PRC Judiciary, 296, 448, 450–455, 461,
Sovereignty, 15, 18 464, 489, 491, 494, 504
Mao Zedong, 14, 434, 463, 471, 478, 487 PRC Legislation
“Mischief Rule” (see Statutory Interpretation of, 85, 97–99, 223–235,
Interpretation) 482–486
Mutual Legal Assistance, 492, 502, 503 Limited Application to Hong Kong, 46,
Arbitration Awards, 495–502 49, 62, 63, 173, 177
Cross-border Collaboration, 517–524 Researching, 576–578
Cross-border Insolvency, 512–517 (As a) Source of Hong Kong Law, 22, 32,
Enforcement of Judgments, 492–495 49, 60, 61, 68–100, 175, 177, 566
Rendition Debate, 503–512 Privy Council (Judicial Committee)
Replacement by Court of Final Appeal,
National People’s Congress 25, 33, 45, 46, 105, 118, 129, 133,
Constitution, Role, Powers, 25, 26, 46, 60, 136, 137
69, 70, 93, 99, 100, 173, 452, 491 Role and Precedent Position, 49, 50, 131,
Standing Committee of, 65–67, 70, 84, 132, 138, 156, 237, 239–245, 247,
85, 97–99, 137, 170, 171, 175, 177, 249–251, 257, 259, 260, 267–269,
185, 194, 223–228, 230–235, 250, 299, 514, 567
292, 296–299, 360, 438, 446, 447, Provisional Legislative Council, 25, 31–33,
457, 483–486, 491, 494, 525, 526 40, 98, 224, 446
Natural Justice, 151, 222, 295, 321, 408, “Purposive” Approaches (to Statutory
409, 456, 561, 591 Interpretation)
Index 601
Qing (Ch’ing) Law, 92, 116, 117, 433, 442 Statutory Interpretation, 173–235
(Of) Basic Law 30, 32, 41, 45, 69, 84,
Retrospective (Retroactive) Legislation, 97–99, 122, 137, 138, 154, 170–175,
104, 219, 221–223, 290, 573, 592 223–235, 250, 295–297, 438, 459,
Right of Abode (Hong Kong), 15, 20, 23, 483–486, 525
24, 26, 29–31, 84, 85, 98–100, 171, “Ejusdem Generis” Rule, 217, 218
219, 224–227, 232–234, 278, 279, 282, “Golden Rule”, 201–202
283, 296–299, 360, 446, 483, 525 “Literal Rule”, 195–201
“Rule of Law” “Mischief Rule”, 202
Hong Kong/PRC comparison, vii, 57, Pepper v Hart, 205–216, 576
336, 432, 438–465, 483, 486, 488 “Purposive” Approaches, 195, 202–216
Meaning, 39, 41, 233, 278, 295, 297, 298, Supreme People’s Court, 434, 447,
373, 435–465, 553, 554, 592 451–454, 461–463, 471, 484, 493, 495,
496, 498, 499, 501, 502, 576, 577
Secretary for Justice Supreme People’s Procuratorate, 484, 520
Cheng, Teresa, 94, 228, 560, 591
Leung, Elsie, 30, 33, 39, 44, 84, 94, 137, Thatcher, Margaret, 15, 18, 347, 444
155, 165, 171, 225, 227, 228, 233, Tiananmen Square, 20, 23, 24, 31, 434,
296–298, 440, 459, 485, 498, 505, 487
506, 508 Treaty of Nanking, 2–4, 11, 12, 113
Role and Functions, 124, 138, 166, 180, Tribunals
183, 185–187, 232, 268, 284, 333, Generally, 32, 33, 130, 131, 133, 138,
342, 365, 499, 529, 551, 553–557, 141–151
561–564, 591 Labour, 144, 145
Wong Yan Lung, 68, 94, 125, 126, 228, Land, 141–143
362, 364, 372, 382, 399, 406, 418, Legal Representation at, 141, 320, 377
419, 428–430, 477 Obscene Articles, 146–148
Yuen, Rimsky, 69, 94, 186, 187, 228, 233, Tu, Elsie, 546
301, 406, 414, 436, 456, 524, 561,
591 Unequal Treaties, 12–15, 20
Separation of Powers, 179, 203, 227,
293–296, 373, 442–456, 482, 563 Weber, M, 288, 358, 359, 464, 465
Sources of Hong Kong Law, 59–128 Woolf (Lord), 130, 168, 398, 399, 402, 403,
State of Emergency, 25, 69, 71 418, 477
State Secrets, 71, 72, 75, 76, 81, 460, 461, Writ System, 102, 109, 110
463, 473, 474, 512, 526

Hong Kong Legal System

Uploaded by

Copyright:

Available Formats

Hong Kong Legal System

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Hong Kong Legal System

Uploaded by

Copyright:

Available Formats

TEXT, CASES

Michael John Fisher

© 2019 Hong Kong University Press

ISBN 978-988-8390-96-0 (Hardback)

British Library Cataloguing-in-Publication Data

1. The Development of the Hong Kong Legal System, 1842–1997 1

Illustration Credits/Acknowledgements 593

Hong Kong Best Sheen Development Ltd v Official

Nishimatsu-Costain-China Harbour Joint Shenzhen Kai Long Investment &

UK/England and Wales Harley v McDonald [2001] 2 WLR

Williams v Roffey Bros & Nicholls [1990] 1

Hong Kong Legislation (Cap 622), then re-named Companies

Ombudsman Ordinance (Cap 397) 150, Societies Ordinance (Cap 151) 67

Rating Ordinance (Cap 116) 153 United Kingdom Legislation

Criminal Justice and Public Order Act, PRC Legislation

Northern Ireland (Emergency Provisions) Enterprise Insolvency Law (Enterprise

Unfair Contract Terms Act, 1977 63, 119,

Crucial to Hong Kong’s success and well-being is a sustained international rec-

1.1 The British occupation of Hong Kong

Curiously, however, the acquisition of Hong Kong was almost accidental, as

1.1.1 Captain Elliot’s proclamation(s)16

The proclamation(s),19 therefore, envisaged a binary legal system; one law

14. See 1.5 below.

1.2 The reception of English Law

The decision to import English law contradicted Captain Elliot’s initial

While notionally different, and appearing to involve a different presumption (that

Two proclamations were issued by Captain Elliott [sic] . . .

31. (1915) 10 HKLR 69.

34. Ibid 3–5.

This lengthy extract highlights the court’s view of changing circumstances.

1.2.1 The mechanism for the reception of English law

39. Ibid 164–193.

1.2.2 The Supreme Court Ordinances

1.3 The Application of English Law Ordinance

47. Cap 219.

11.1 The “two systems” aspect of “one country, two systems”

English courts and adopted subsequently in various jurisdictions, usually having

11.2 The rule of law: Meaning18

“There is no universal definition of ‘Rule of Law’. Many countries . . . claim to

judicial independence”. The political neutrality of the judiciary he saw as epitomised

11.2.1 The rule of law: The “primacy” of Law

Certainly there were political “implications” in the Democratic Republic of the

Chen, however, adds optimistically that:

Despite this progress, Chen, elsewhere, notes:

11.2.1.1 Equality before the law

30. Ibid 96.

Crimes committed by the children of high-ranking officials and celebrities need to

With the increasing economic inequalities in modern, post-Deng China, con-

11.2.2 The rule of law: Separation of powers

school of socio-legal researchers has, indeed, focused on the politico-economic

66. Though it should “have regard” to the need to encourage diversity.

In serious contrast, the concept of “separation of powers” is not recognised in

The PRC Constitution emphasises the leadership of the Chinese Communist

At the insistence of an angry Henan Province People’s Congress, Judge Li was

76. Supreme People’s Court (Party Leadership Group), 10 February 2015.

The swift reinstatement of Judge Li illustrated considerable sympathy for her

11.2.3 The rule of law: Judicial independence and autonomy

In Britain this is underpinned by the “security of tenure” of judges, who may

Moreover, judges then in post would be permitted to continue “post-1997” (irre-