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The Paradox of Hong Kong Colonialism: Inclusion as Exclusion*

Published online by Cambridge University Press:  18 July 2014

Anne S. Y. Cheung
Anne S. Y. Cheung
Affiliation:
Department of Law, University of Hong Kong
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Abstract

This paper examines the British legal policy in Hong Kong which preserved Chinese customary law as a subtle and indirect form of social control. The initial takeover of Hong Kong by the British in 1841 was motivated by economic interest in China. Hong Kong was to be developed into an entrepôt under a laissez-faire government. In order to pacify the local subjects and the Chinese government, English law was applied to British subjects but the local Chinese were governed by Chinese customary law. Gradually, the interpretation of customary law by English judges and common law courts transformed and even created a new understanding of this law. The preservation of customary law had the paradoxical effect of ousting the local narrative. One hundred and fifty-six years have passed; Hong Kong has fulfilled the British dream of being a flamboyant commercial centre. However, in less than 150 days, Hong Kong will be elevated from the status of a British colony to that of “special administrative region” of China. Nonetheless, the rhetoric of laissez-faire government continues to be reflected in the policy of “high degree of autonomy.” The fate of Hong Kong is certainly unknown. Hopefully, the study of its past experience will shed some light on its future.

Résumé

Dans le présent article, l'auleure passe en revue les diverses lois britanniques qui, sous le couvert de maintenir le droit coutumier chinois, visaient à exercer un contrôle social. La prise de Hong Kong par les Britanniques en 1841, motivée par des intérêts économiques, avait pour objectif de faire de l'île un entrepôt et un port franc. Pour pacifier les habitants et le gouvernement chinois, on y instaura un régime juridique en vertu duquel les sujets britanniques étaient régis par le droit anglais et les indigènes par le droit coutumier chinois. Peu à peu, l'interprétation du droit coutumier chinois élaborée par les juges anglais des cours de common law a transformé celui-ci, échafaudant une nouvelle approche du droit coutumier. Paradoxalement, donc, le maintien officiel du droit coutumier a eu pour effet de déposséder les autochtones de leurs coutumes séculaires. Cent cinquante-six ans plus tard, le rêve des Britanniques s'est matérialisé; Hong Kong est aujourd'hui un centre commercial florissant. Mais dans moins de cent cnquante jours, la colonie acquerra le statut de territoire autonome (zone administrative spéciale) qui jouira, selon les termes du gouvernement chinois, d'un large degré d'autonomie, laissant présager le maintien d'un régime de libéralisme économique. Toutefois, le sort de Hong Kong demeure, à ce jour, incertain. Peut-être son passé peut-il nous éclairer sur son avenir?

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 11 , Issue 2 , Fall/automne 1996 , pp. 63 - 85
Copyright
Copyright © Canadian Law and Society Association 1996

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References

1. The claimed “virtues” of the common law system can be defined as the principles of equality before the law, separation of powers, due process of law and respect for human rights. Hong Kong has concentration of power in the executive branch. It has a non-representative government. The Hong Kong Government restricted freedom of the media and did not encourage public criticism. Under section 27 of the Public Order Ordinance (Cap. 245, Laws of Hong Kong, 1987 ed.), anyone who “maliciously publish in any local newspaper false news which is likely to cause alarm to the public or… disturb public order” was punishable by two-year imprisonment. This was repealed after much protest in 1989. The Bill of Rights Ordinance (Cap. 383, Laws of Hong Kong, 1991 ed.) was only introduced in 1991 as an instrument to regain confidence in Hong Kong after the Tiananmen massacre in China.

2. From 1844 to 1984, all members of the Legislative Council were appointed. It was only in 1991 that the government introduced direct election. The slogan used by the government was “Vote: it's power in your hands!” Election is a cardinal feature of democracy. It enables public interest to be represented, renders the government accountable to the people and realizes the dream of sovereignty of the people. However, the constitutional framework of 1991 was not designed to actualize the slogan of votes with power. In 1991, Hong Kong had 18 directly elected members out of 60 in the Legislative Council. From 1995 on, half of the composition is elected by functional constituencies, which is far from the ideal of universal suffrage. For further discussion see Kwok, R. et al. , eds., Votes Without Power (Hong Kong: Hong Kong University Press, 1992).Google Scholar

3. Though the experience of other British colonies is very similar to that of Hong Kong in regard to the retention of customary law, Malaysia is chosen as a study subject for its application of the Chinese customary law before and after the colonial days. For a comprehensive comparative study of the dual system of British colonialism, see Matson, J. N., “The Common Law Abroad: English and Indigenous Laws in the British Commonwealth” (1993) 42 International and Comparative Law Quarterly 753.CrossRefGoogle Scholar

4. In 1842, the Hong Kong island was acquired after Britain's victory in the First Opium War. The Kowloon peninsula was ceded to Britain after the Second Opium War of 1858–1860. Finally, China's defeat by Japan in the war of 1894–1895 enabled Britain to demand the lease of the New Territories for 99 years.

5. The data was compiled in 1995. See “The Most Update International Economic News” The International Chinese Newsweekly (28 April 1996) at 73.

6. Endacott, G. B., Government and People in Hong Kong, 1841–1962 (Hong Kong: Hong Kong University Press, 1964) at 20.Google Scholar

7. Ibid. at 52.

8. “Jardine Matheson” dated back to its foundation in 1782, making money in smuggling opium to China in the 1820s. It has since developed into a set of holding companies which own a couple of subsidiaries engaged in activities that include shipping, air transport, engineering, construction, property development, hotels, insurance, airport supplies and retailing. Local franchises owned by Jardine include Mercedes-Benz, Christian Dior, and Pizza Hut. The main rival of Jardine can be said to be “Butterfield and Swire,” founded in Shanghai in 1866 as a shipping and trading company, that entrenched itself in Hong Kong. It owns the colony's main airline, Cathay Pacific Airways.

9. At the beginning of the British occupation, most Chinese felt they were impotent to do anything in the face of marked superior Western military power. After the overthrow of the Qing imperial dynasty in 1911, there was a flurry of patriotic sentiment for the new Chinese government. The seamen's strikes in 1922 and 1925 were attempts to stop the British government from turning Hong Kong into an international port. For further discussion, see Miners, N., The Government and Politics of Hong Kong (Hong Kong: Oxford University Press, 1991) at 15.Google Scholar

10. Ibid. at 6.

11. Wesley-Smith, P., Constitutional and Administrative Law in Hong Kong, vol. 1 (Hong Kong: China & Hong Kong Law Studies, 1987) at 34.Google Scholar

12. The phrase used by the Supreme Court in Ho Tze Tun v. Ho Au Shi and others (1915), 10 H.K.L.R. 69 at 79.

13. Wesley-Smith, P., The Sources of Hong Kong Law (Hong Kong: Hong Kong University Press, 1994) at 207–08Google Scholar [hereinafter The Sources].

14. Endacott, supra note 6 at 28.

15. Lewis, D. J., “A Requiem for Chinese Customary Law in Hong Kong” (1986) 32 International and Comparative Law Quarterly 347 at 350.CrossRefGoogle Scholar

16. The Sources, supra note 13 at 209.

17. Repealed by Ordinance No. 10, 1890

18. Repealed by Ordinance No. 6, 1857.

19. Subsequently repealed by Ordinance No. 6, 1845.

20. Supra note 5 at 40.

21. Section 3 of the No. 15 Ordinance, 1844, repealed by the Supreme Court Ordinance No. 6, 1845. See The Sources, supra note 13 at 89–90.

22. Thus, Chinese family law and succession law were retained until the early 1970s. Chinese law and custom on marriage, concubinage, divorce, adoption, and succession were abolished by the Marriage Reform Ordinance (Cap. 178, Laws of Hong Kong, 1971 ed.), Intestate's Estates Ordinance (Cap. 73, Laws of Hong Kong, 1971 ed.), and the Adoption Ordinance (Cap. 290, Laws of Hong Kong, 1972 ed.).

23. “Fused common law system” refers to the departure from the original intention to keep a dual legal system for the benefit of the Chinese population in Hong Kong. For further discussion, see Hsu, B., The Common Law in Chinese Context (Hong Kong: Hong Kong University Press, 1992) at 13.Google Scholar

24. Ibid. at 13.

25. The relevant section declared that “[s]uch of the laws of England as existed when the Colony obtained a local legislature, that is to say, on the 5th day of April, 1843, shall be in force in the Colony, except so far as the said laws are inapplicable to the local circumstances of the Colony or of its inhabitants, and except so far as they have been modified by laws passed by the said legislature.”

26. (1915) 10 H.K.L.R. 69.

27. Ibid. at 80.

28. (1925) 20 H.K.L.R. 1. The case concerned the effect of the Probate Ordinance, 1897 on Chinese customary law.

29. [1957] H.K.L.R. 420.

30. Ibid. at 443.

31. Cap. 88, Laws of Hong Kong 1966 ed.

32. The specific English statutes that are applicable in Hong Kong are listed in the Schedule of the Ordinance. As a result, the 1966 Ordinance only changed the form of receiving English statutory law from wholesale reception in 1845 and reception by a reference date in 1875 to reception by listing in 1966.

33. [1967] H.K.L.R. 201. The case concerned a claim on behalf of a concubine's children under the Fatal Accidents Ordinance. The concubine was refused recognition as a wife under the Ordinance but her children were recognized as “children.”

34. The Sources, supra note 13 at 217.

35. Supra note 12.

36. Supra note 28.

37. [1969] H.K.L.R. 159. The case concerned the capacity of Chinese to make a will under Chinese customary law.

38. [1969] H.K.L.R. 391. The case concerned the status of concubine of the defendant.

39. Ibid. at 394.

40. Haydon, E. S., “The Choice of Chinese Customary Law in Hong Kong” (1962) 11 International Comparative Law Quarterly 231 at 246.CrossRefGoogle Scholar

41. The Sources, supra note 13 at 223.

42. Ibid. at 206, note 5. Wesley-Smith quoted McLachlan, C., “The Recognition of Aboriginal Customary Law” (1988) 37 International Comparative Law Quarterly 368 at 381.Google Scholar

43. The Sources ibid. at 216.

44. [1962] H.K.L.R. 515.

45. Ibid. at 530.

46. [1969] H.K.L.R. 367.

47. Evans, D. M., “Common Law in a Chinese Setting: The Kernel or the Nut?” (1971) 1 Hong Kong Law Journal 10 at 24.Google Scholar

48. The New Territories were closest to China. Most people lived in villages or clans. Their lives were governed by traditional Chinese values and customs.

49. Ordinance No. 12, 1899, as rep. by Ordinance No. 34, 1910.

50. Ibid.

51. Supra note 22.

52. Cap. 97, Laws of Hong Kong.

53. Hsu, supra note 23 at 12.

54. Selby, S., “Everything You Wanted To Know About Chinese Customary Law (But Were Afraid To Ask)” (1991) 21 Hong Kong Law Journal 44 at 77.Google Scholar

55. Coates, A., Myself A Mandarin (Hong Kong: Heinemann Educational Books Ltd, 1975).Google Scholar

56. [1970] 1 H.K.L.R. 276.

57. Cap. 97. Laws of Hong Kong. This ordinance was amended in 1994.

58. For further discussion, see Van Dale, J., “Chinese Custom in the New Territories: Non-Indigenous Women's Right to Inherit Land” (1994) Hong Kong Student Law Review 111.Google Scholar

59. Indigenous residents should be limited to those who had ancestors that were residents in 1898, when the New Territories were leased to Britain.

60. Cap. 97, Laws of Hong Kong. The original bill was a private member's bill moved by independent legislator and active feminist, Christine Loh.

61. [1990] 1 H.K.L.R. 67.

62. Supra note 22.

63. Supra note 22.

64. Staunton, G. T., Ta Ching Lu Li: Being the Fundamental Laws of the Penal Code of China (Taipei: Cheng-Wen, 1966 at 110Google Scholar, book 3, section C3.

65. Tan, C. G. S., “The Twilight of Chinese Customary Law Relating To Marriage in Malaysia” 42 International and Comparative Law Quarterly (1993) 147 at 149.CrossRefGoogle Scholar

66. This is referred as the kim tiu marriage, where one branch of a family lacks male heirs, and the heir of another branch marries to beget sons for that one.

67. Tan, supra note 65 at 150.

68. The term was coined by F. D. Lugard as a practical means of administration and control in Africa. Cameron, (who had served in Nigeria under Lugard) expressed, when he was Governor of Tanganyika in 1925, that “a system of indirect native administration had been instituted … to which I attach the greatest possible importance as I believe that by that we shall secure, as far as it is humanly possible to foresee now, the political and social future of the natives in a manner which will afford them a permanent share in the administration of the country on lines which they themselves understand anc can appreciate, building up at the same time a bulwark against political agitation and averting the social chaos of which signs have already manifested themselves in other countries similarly situated.” See Morris, H. F. & Read, J. S., Indirect Rule and the Search for Justice (Oxford: Clarendon, 1972) at 3.Google Scholar

69. Ibid. at 167.

70. Brown, N. J., “Law and Imperialism: Egypt in Comparative Perspective” (1995) 29:1Law and Society Review 103 at 104.CrossRefGoogle Scholar Brown's study was not on imperial rule as an instrument of social control but on the local elites using imperial law to their own advantage in colonial and post-colonial Egypt.

71. The three major islands of Malaysia were acquired by the British at three different stages. The Charter of Justice of 1826 was based on an earlier Charter in 1807, of which the latter only applied to Penang. For direct quote and detail discussion, see Braddell, R. St. John, The Law of the Straits Settlements, 3rd ed., (Kuala Lumpur: Oxford University Press, 1982) at c. 1.Google Scholar

72. (1877) 1 Kyshe 413.

73. (1827–1877) S.L.R. 418.

74. As amended by the Law Reform Act (Marriage and Divorce) (Amendment) 1980 (Act A498) and the Law Reform Rules (Marriage and Divorce) 1082 P.U. (A) 53 of 1982.

75. Tan, supra note 65.

76. [1989] 3 M.L.J. 157.

77. Ibid. at 161.

78. Tan, supra note 65 at 154

79. Woodman, G. R., “How State Courts Create Customary Law in Ghana and Nigeria” in Morse, B. M. & Woodman, G. R., eds., Indigenous Law and the State (Dordrecht: Foris, 1988) at 181.Google Scholar

80. Evans, supra note 47 at 27.

81. Supra note 61.

82. In the study of customary law in Africa, P. Fitzpatrick identified the roles that customary law played in modern society. Customary law as (1) distinct and autonomous or; (2) subordinated to or dissolved within some wider entity or; (3) the representation of the dynamic interaction between customs and state law. Fitzpatrick favoured the third option. For an insightful discussion, see Fitzpatrick, P., “Customs as Imperialism” in Abun-Nasr, J. M., Spellenbery, U., Wanitzek, U., eds., Law, Society and National Identity (Hamburg: Helmut Buske Verlag, 1990) 15 at 17.Google Scholar

83. U.K., Strickland Committee, Chinese Law and Custom in Hong Kong (Hong Kong: Government Printer, 1953) at 36–81.Google Scholar

84. Hsu, supra note 23 at 17.

85. Ibid.

86. The McDouall-Heenan Report on Chinese Marriages in Hong Kong by McDouall, J. C. & Heenan, M., (Hong Kong: Government Printer, 1967).Google Scholar

87. Supra note 22.

88. Supra note 22.

89. Supra note 22.

90. Ordinance No. 1, 1923, as rep. by Ordinance No. 60, 1969.

91. Sino-British Joint Declaration 1984, para. 3(4) and Basic Law (the future constitutional document for Hong Kong), preamble.

92. Under article 31 of China's 1982 Constitution, the state has the power to establish special administrative regions. At present, China has five autonomous regions: Inner Mongolia, Tibet, Guang Xi, Lin Xia and Xin Jiang. In 1997, Hong Kong will be the first S.A.R., followed by Macao in 1999, and hopefully with Taiwan in the future, thus completing China's hope of unification.

93. For further discussion from a Chinese perspective, see Zhang, Y. Y., “The Reasons for and Basic Principles in Formulating the Hong Kong Special Administrative Region Basic Law, and its Essential Contents and Mode of Expression” (1988) 2 Journal of Chinese Law 5.Google Scholar

94. Ghai, Y., “The Rule of Law and Capitalism: Reflections on the Basic Law” in Wacks, R., ed., Hong Kong, China and 1997 (Hong Kong: Hong Kong University Press, 1993) 345.Google Scholar The essay discusses the tilted nature of the Basic Law in favour of preservation of capitalism.

95. Ghai, Y., “Hong Kong and Macao in Transition (1)” (1995) 2:3Democratization 270 at 274.CrossRefGoogle Scholar

96. For further discussion, see Morris, T., “Some Problems Regarding the Power of Constitutional Interpretation Under Article 158 of the Basic Law of the Hong Kong Special Administrative Region” (1991) 21 Hong Kong Law Journal 87.Google Scholar

97. Nabob of the Carmatic v. East India Co. (1792), 2 Ves Jun 56; Nissan v. A.G., [1970] A.C. 179.

98. Weiyun, Xiao, One Country, Two Systems and the Legal System of the Hong Kong Basic Law (Beijing: Peking University Press, 1990) at 325Google Scholar (published in Chinese).