Hostname: page-component-88dd8db54-6znt5 Total loading time: 0 Render date: 2024-03-05T13:46:26.455Z Has data issue: false hasContentIssue false

The Relationship between Chinese Law and Common Law in Malaysia, Singapore, and Hong Kong

Published online by Cambridge University Press:  23 March 2011


Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

There is a considerable body of literature on the relationship between common law and various systems of personal laws especially in the Asian context. My only excuse for adding yet another account is this: A technical legal description of this relationship, focusing on such topics as marriage, divorce, inheritance, and so on, adds a real and important dimension to the study of culture contact. Except in Hong Kong, common law is no longer the dominant political system; it has become, with local variations, “government law” in the territories under consideration. Since law is the instrument most often used in the implementation of new government policies affecting family matters, for example, it seems important that some attempt be made to describe the techniques of interaction and to set out the present law as accurately as possible. Hopefully this essay will serve as skeleton reference material on the relation between these two systems of law. To accomplish this aim I will: (a) describe the ways in which the common law has been adapted so as to take account of Chinese law, (b) state the “principles of Chinese law” which the courts have formulated in the course of this adaptation, and (c) note the points at which the respective courts in the three territories have differed in their interpretation regarding the content of Chinese law.

Copyright © Association for Asian Studies, Inc. 1969


1 Summarized in The Law of the Straits Settlements: A Commentary 2 vols (2nd ed., Singapore, 1931)Google Scholar. See vol. I, 62–94. Attention is directed especially to the following judicial decisions: R. v. Willans, 3 Ky. 16; Choa Choon Neoh v. Spottiswoode, 1 Ky. 216; Ong Cheng Neo v. Yeap Cheah Neo and ors. 1 Ky. 326. In the goods of Khoo Chow Sen, 2 Ky. Ecc. Rs. 22; Tan Kiong v. Ou Phaik (1900) 5 S.S.L.R. 77.

2 The earliest example of this basis is a statement by Maxwell C. J. in Chulas v. Kolson (1877) Leicester's Reports, 462 where the Chief Justice said: “their own laws or usages must be applied to them on the same principles and with the same limitations as foreign law is applied by our courts to foreigners and foreign transactions.”

3 Hyde v. Hyde, L.R. 1, P. & D. 130. The judge in this case, however, expressely limited the application of this principle to societies where polygamy is not recognized.

4 The Chinese Civil Code seems to have made some attempt to prohibit polygamy, cf. Book IV, Art., 985, “… a person who has a spouse may not marry again.” The Code did not, however, place any restriction on the formalities required to celebrate a marriage except that there should be some ceremony, that the marriage should be open to the public, and that there be two or more witnesses. Art., 982. cf. J. V. Mills, “Marriage in England, Singapore, and China,” 31 Journal of Comparative Legislation and International Law Series 3, Part II, 25–36 at p. 28. On the problems which Art., 985 raised for many Chinese cf. Family Law in Asia and Africa (London 1968) pp. 7389 at pp. 73–74Google Scholar. In China Shiu Sui Ping v. Chan Din Tsang [1958] H.K.L.R. 283, the Hong Kong court recognized a Chinese customary marriage which took place in China after May 1931. This marriage was recognized for divorce purposes as being “a Christian marriage or its civil equivalent,” Hong Kong Divorce Ordinance 1952, s. 2.

5 Khoo Hooi Leong v. Khoo Chong Yeok [1930] A.C. 346 at 352. Cheang Thye Pin v. Tan Ah Loy [1920] A.C. 369. Khoo Hooi Leong v. Khoo Hean Kwee [1921] A.C. 529.

6 See Payne, C. H. Withers. The Law of Administration of and Succession to Estates in the Straits Settlements (1932) 25 ff.Google Scholar

7 Lim Chooi Hoon v. Chok Yoon Guan (1893) 1 S.S.L.R. 72.

8 Re Choo Eng Choon (1911) 12 S.S.L.R. 120 at 224 ff.

9 Khoo Hooi Leong v. Khoo Chong Yeok. [1930] A.C. 346.

10 For a summary of the whole topic of private international law principles in the Straits Settlements see Mills, J. V., “Marriage in England, Singapore, and China,” 31 Journal of Comparative Legislation and International Law (1949) Series 3, Part II, 2536.Google Scholar

11 Examples of this can be found in Carolis de Silva v. Tin Kim (1904) 9 S.S.L.R. 8. Cheng Ee Mun v. Look Chun Heng [1962] M.L.J. cxxxvi (comment) and 411 (report).

12 (1924) 4 F.M.S.L.R. 313.

13 (1924) 4 F.M.S.L.R. 316–18.

14 The courts have also applied rules of equity in the Federated Malay States. Motor Emporium v. Arumugam [1933] M.L.J. 276 at 278 (Selangor).

15 Goh Eng Seong v. Tay Keng Seow [1935] M.L.J. 50.

16 Negri Sembilan from 1883, Pahang from 1889, Perak and Selangor from 1877.

17 See the cases cited in the most recent decision on Chinese custom. In Re Ding Do Ca deed. [1966] M.L.J. 6. It was held, however, that the courts of the Federated Malay States had no jurisdiction to deal with issues affecting conjugal rights among the Chinese. Choi Wai Ying v. Cheong Weng Chan and ors. [1933] M.L.J. 301. See also Lim Chye Peow v. Wee Boon Tek (1871) 1 Ky. 236, but see contra R. v. Loon: re Khu Lak Neoh (1864) W.O.C. 39.

18 (1922) 1 F.M.S.L.R. 383; (1925) 6 F.M.S.L.R. 13.

19 (1922) 2 F.M.S.L.R. 43.

20 (1922) 1 F.M.S.L.R. 336.

21 [1928–41] S.C.R. 60.

22 [1947] S.C.R. 1.

23 This was followed and applied in Wong Teck Giak and anor. v. Ting Ni Moi [1950] S.C.R. 1 and 39 (appeal).

24 [1950] S.C.R. 17.

25 [1956] S.C.R. 58.

26 This state is not part of the Federation of Malaysia but has a special relationship to it.

27 [1953] S.C.R. 85.

28 [1960–63] S.C.R. 105.

29 Chinese Law and Custom in Hong Kong. Report of a Committee appointed by the Governor in October 1948. (Hong Kong: Government Printer, February, 1953.)

30 This is very similar to the provisions of the Straits Settlements Charters.

31 (1915) 10 H.K.L.R. 69.

32 (1925) 20 H.K.L.R. 1.

33 See for example: Nonia Cheah Yew v. Othmansaw Merican and anor. (1861) 1 Ky. 160; R. v. Sim Boon Lip (1902–03) 7 S.S.L.R. 4; Wong Pun Ying v. Wong Tin Hong [1963] H.K.L.R. 37. The Straits Settlements Chinese Marriage Committee (Singapore Government Printer, 1926), however, took evidence from the Straits and Chinese born Hokkien, Cantonese, Teochew, Hakka and Hailam communities.

34 The spelling of this term (and sim-boo-kian on p. 732 below) is that used in the law reports and is continued here for ease of recognition when dealing with legal documents. Sometimes Hwei is also referred to, incorrectly, as tontine.

35 There is a Tamil version of this in Malaysia known as kfithu: see C. Gamba, “Poverty and some Socio-Economic Effects of Hoarding, Saving and Borrowing in Malaya.” 3 Malayan Economic Review (1958) 33–56 at 39–41.

36 (1929–30) 24 H.K.L.R. 1.

37 (1915) 10 H.K.L.R. 157.

38 (1913) 8 H.K.L.R. 89.

39 Chow Cham v. Yuet Seem (1910) 5 H.K.L.R. 233; Soo Hood Beng v. Khoo Chye Neo (1896) 4 S.S.L.R. 115 (manager is agent for members); Lau Chuo Kiew v. Hii Chee Soon [1966] M.L.J. 126; Lee Pee Eng v. Ho Sin Leow [1958] S.C.R. 18 (an agreement to repay money tendered for and received is an enforceable agreement); Luk Dai Chung v. Nga Ee Nguok. [1966] M.L.J. 119 (head may be liable to the members for the debt of a member); Ngu Ee Nguok v. Lee Ai Choon [1965] M.L.J. 32 default by a member must be proved and the onus of proof is upon the person asserting); Tan Siew Hee & ors. v. Hii Sii Ung [1964] M.L.J. 385 (the receipt given by a successful tenderer, which is in the nature of a promissory note, raises the presumption of [oral] contract for which there must be consideration and evidence is admissible to show want of consideration).

40 Chan lu Sang v. Tam Wai Sang (1927) 22 H.K.L.R. 129.

41 [1960–63] S.C.R. 325.

42 See also the statement of Lord Herschell in Clarke v. Dunraven [1897] A.C. 59 at 63 … “undertaking to be bound by … rules to the knowledge of each, is sufficient, I think, where these rules indicate a liability on the part of one to the other, to create a contractual obligation to discharge that liability. That being so, the parties must be taken to have contracted that a breach of any of these rules would render the party guilty of that breach liable. …”

43 Such marriages cannot be contracted in Singapore possibly since 1961 but certainly from 1967—Women's Charter (Ordinance 18 of 1961 as amended by 9 of 1967). However, the problem of polygamy linked with considerations of domicile may still give rise to problems in Singapore Courts.

44 I agree with David Buxbaum (25 Journal of Asian Studies (1965–66), p. 639, footnote 78) that secondary relationships do probably continue in Singapore despite the Women's Charter.

45 (1921) 14 S.S.L.R. 79.

46 [1961] M.L.J. 10.

47 [1928] S.S.L.R. 178; [1929] S.S.L.R. 50 (appeal). See also: Lee Choon Guan decd.; Lew Ah Lui v. Choa Eng Wan [1935] M.L.J. 78; Lee Seang Neo and ors. v. Low Hin Tuan and ors. (1925) 5 F.M.S.L.R. 154; In the Estate of Lee Siew Kow decd. [1952] M.L.J. 184; Ngai Lau Shia v. Low Chee Neo (1921) 14 S.S.L.R. 35; Seow Beng Hay v. Seow Soon Quee [1933] M.L.J. III (a man may marry a tʻ sip—secondary wife—before a tʻ sai—first wife). Soh Eddie v. Tjhin Feong Fah [1951] M.L.J. 124; Tan As Bee v. Foo Koon Thye and anor. [1947] M.L.J. 169; Re Yeo Seng Whatt decd. [1949] M.L.J. 60 and 241; Re Yeow Kian Kee decd. Er Gek Cheng v. Ho Ying Seng [1949] M.L.J. 171.

48 (1877) Leicester's Reports 314.

49 [1926] S.S.L.R. 27.

50 (1877) Leicester's Reports 167.

51 Soong Voon Sen v. Ang Kiong Hee [1933] M.L.J. 262.

52 R. v. Yeah Boon Leng (1890) 4 Ky. 630: see also R. v. Sim Boon Lip (1864) W.O.C. 39 and R. v. Teo Kim Choon [1947] S.L.R. 58.

53 The Chinese Marriage Ordinance, 1933 (Cap. 74 revised laws 1946—see especially section 4).

54 Chien Boon Tong v. Goh Ah Pei and anor. [1956] S.C.R. 58.

55 Chien Boon Tong v. Goh Ah Pei and anor. [1956] S.C.R. 58.

56 [1963] H.K.L.R. 923: see also Au Hung Fat v. Lam Lai Ha [1959] H.K.L.R. 527.

57 1932–33) 26 H.K.L.R. 42.

58 (1904) 9 S.S.L.R. 8.

59 [1934] M.L.J. 83.

60 On consensus generally see R. v. Willis (1843–44) Cl. & F. 534.

61 [1950] M.L.J. 104; [1953] A.C. 304 cf. Freedman, Maurice, “The Penhas Case: Mixed and Unmixed Marriage in Singapore,” 16 Modern Law Review, (1953) 366–68.Google Scholar

62 [1949] M.L.J. 171.

63 [1956] M.L.J. 257.

64 This term is not Chinese and it does not appear in any of the standard Malay or Indonesian dictionaries. It appears to be Dyak and is used to mean bride price: see 4 Sarawak Museum journal (1935) No. 15, Part IV, 395.

65 [1953] S.C.R. 59: see also Chia Ah Kiaw v. Tan Ka Yong [1928–41] S.C.R. 115.

66 [1952] S.CR. 18.

67 Loh Chai Ing v. Latt Ing Ai [1959] S.CR. 13. This was a Foochow marriage and is known as a Tung Yang-Hsi marriage, cf. sim-boo-kan above.

68 Chinese Law and Custom in Hong Kong—report of a committee, (Government Printer 1953). See pp. 26–28, 46–49.

69 [1964] 2 All. E.R. 248: Buxbaum, 25 journal of Asian Studies (1965–66) 641 note 86.

70 Re Lee Gee Chong decd. [1965] M.L.J. 102. In the estate of Sim Siew Guan decd. [1932] M.L.J. 95: see also Woon Ngee Yew & ors. v. Ng Yoon Thai & ors. [1941] M.L.J. 32.

71 Re Soo Hat San and Wong Sue Foong [1961] M.L.J. 221.

72 Cheng Ee Mun v. Look Chun Heng and anor. [1962] M.L.J. 411.

73 Liu Kui Tze v. Lee Shak Lian [1953] S.CR. 85.

74 Chien Man Ong v. Wong Suok. [1956] S.CR. 97: compare Lim Siew Yun v. Soong Ah Kaw [1960–63] S.CR. 105.

75 Wong Chu Ming v. Kho Lieng Hiong [1952] S.CR. 1.

76 Yong Mong Yung v. Chai Shong [1964] M.L.J. 424.

77 Lee Yung Kiang v. Ling Yun Tie [1965] M.L.J. 87. See also Tang Sui Ing v. Goh Tien Liong [1964] M.L.J. 406.

78 Loh Chat Ing v. Lau Ing Ai [1959] S.C.R. 13. See also Tang Sui Ing v. Goh Tien Liong [1964] M.L.J. 406.

79 Tang Sui Ing v. Goh Tien Liong [1964] M.L.J. 406.

80 Loh Chai Ing. v. Lau Ing Ai [1959] S.C.R. 13.

81 Kong Nyat Moi v. Leong Sing Chiang [1965] M.L.J. 73.

82 Lo Siew Ying v. Chong Fay [1959] S.C.R. 1.

83 Lo Siew Ying v. Chong Fay [1959] S.C.R. 1.

84 Thia Whee Kiang v. Kueh Eng Seng [1955] S.C.R. 75.

85 Siaw Moi Jea v. Lu Ing Hui [1959] S.C.R. 16.

86 Chinese Law and Custom in Hong Kong—report pp. 49–53. The committee cited an extract from a report made in 1883 which contained “forms” for the transfer of a son and deed of sale of a son into adoption and a letter of instructions referring to an adopted son, see pp. 194–99. See also In the goods of Chan Tse Shi (1954) 38 H.K.L.R. 9; Wong Yu Shi and ors. v. Wong Yin Kuen [1957] H.K.L.R. 420; Chan Yue (alias) v. Henry G. Leong Estates Ltd. (1953) 37 H.K.L.R. 66.

87 In the state of Ngai I: Ngai Chung Shi and anor. v. Ngai Yee Mui (1927) 22 H.K.L.R. 105.

88 Cheang Thye Gan v. Lim Ah Chen and ors. (1921) 16 H.K.L.R. 19.

89 Lui Yuk Ping v. Chow To [1962] H.K.L.R. 515.

90 Cases to the effect that “children” means adopted children: In re Kho Khye Chear decd. [1938] M.L.J. 224; In re Lim Yew Teok. decd. [1937] S.S.L.R. 243; Quaik Kee Hock. v. Wee Geok. Neo [1886] 4 Ky. 128; Re Tan Hong decd. [1962] M.L.J. 355; Re Teo Soo Piah decd. [1950] M.L.J. 176; Re Yeo Soo Theam decd. 1937 S.S.L.R. 276; Cheok. Chin Huat v. Cheok Chin Soon [1937] S.S.L.R. 103; Re Tan Cheng Siong decd. [1937] S.S.L.R. 293; Tan Phee Teck v. Tan Tiang Hee [1952] M.L.J. 240.

91 (1877) Leicester's Reports 460.

92 (1877) 1 Ky. 413. This case was cited with approval by the Privy Council in Re Choo Eng Choon decd. [1930] A.C. 346 at 355.

93 (1911) 12 S.S.L.R. 18.

94 See Re Loh Toh Met: Kong Lai Fong v. Loh Heng Peng [1961] M.L.J. 234. Similarly, the adoption of a person into die family of a man already deceased at the time of adoption is no longer valid— see Tan Sim Neoh v. Soh Tien Hock (1922) 1 F.M.S.L.R. 336.

95 [1950] S.C.R. 1 and 39 (appeal).

96 [1950] S.C.R. 17.

97 In the estate of Chan Chin Hee decd. [1948] S.C.R. 6.

98 The court approved the following grounds: (a) If the parents of the father wish to recognize the child, (b) If other elders of the family wish to recognize the child provided the father consents, (c) A person's name carved on a tombstone is evidence, not necessarily conclusive, of his legitimation.

99 Khoo Hooi Leong v. Khoo Choong Yok [1930] S.S.L.R. 127. In re Khoo Tek's Settlements [1929] S.S.L.R. 50.

100 In the estate of Choo Eng Choon decd. (1911) 12 S.S.L.R. 120 at 224.

101 Chinese Law and Custom in Hong Kong—report pp. 63–64.

102 [1961] H.K.L.R. 219.

103 Chan Bee Neo and ors. v. Ee Siok Choo [1947] S.C.R. 1. Re Tay Lint Tiang deed. [1955] S.C.R. 17.

104 (1923) 3 F.M.S.L.R. 42.

105 [1936] M.L.J. 49.

106 Variously referred to in the reports as sin chew, chin shong.

107 In Re Chan Quan Ee (1920) 15 H.K.L.R. 74; Lan Leung Shi v. Lau Po Tsun (1911) 6 H.K.L.R. 149.

108 Lee Poh Lian Neo and ors. v. The Chinese Bankers Trust Co. Ltd. [1941–42] S.S.L.R. 28.

109 Cheang Tew Muey and ors. v. Cheang Cheow Lean Neo & ors. [1930] S.S.L.R. 58.

110 Yeoh Him & ors. v. Yeoh Cheng Kong and ors. (1889) 4 Ky. 500: see contra. Re Yap Kuan Seng. deed. (1924) 4 F.M.S.L.R. 313.

111 Tan Chin Ngoh v. Tan Chin Teat and ors. [1946] S.L.R. 14; Re Low Kim Pong's Settlement Trusts [1938] S.S.L.R. 144.

112 [1932] S.S.L.R. 226: see also Ong Geok Neo v. Chee Hoon Bong and ors. (1893) 1 S.S.L.R. 53; Phan Kin Thin v. Phan Kuow Yung [1940] M.L.J. 35.

113 (1869) 1 Ky. 216.

114 [1948–49] M.L.J. Supp. 66.

115 Re Tan Kim Seng deed. (1911) 12 S.S.L.R. 1. Re the trusts of Wan Eng Kiat [1931] S.S.L.R. 57.

116 Re the trusts of Wan Eng Kiat [1931] S.S.L.R. 57.

117 Re Chen Ah Sang deed. [1949] M.L.J. 14.

118 Ng Eng Kiat v. Goh Lai Mui & ors. [1940] S.S.L.R. 78.

119 Choy Mien Hew v. Choy Weng Tung and anor. [1932] S.S.L.R. 126. See also Li Chik, Hung v. Li Pui Choi (1911) 6 H.K.L.R. 12 where the law as to “ancestral property” had to be proved on the ground that there is no such form of property in English law.

120 Not including the rights of adopted persons—see above “adoption”.

121 Wong Pan Ying v. Wong Ting Hong [1963] H.K.L.R. 37: see also Chan Yeung v. Chan Shew Shi (1925) 20 H.K.L.R. 35; Ho Cheng Shi v. Ho Sau Lam (1920) 15 H.K.L.R. 35; Chan Shun Cho v. Chak. Hok Ping (1925) 20 H.K.L.R. 1; Ho Tsz Tsun v. Ho Au Shi and ors. (1915) 10 H.K.L.R. 69.

122 Li Chik Hung v. Li Pui Choi (1911) 6 H.K.L.R. 12.

123 Ho Sau Lam v. Ho Cheng Shi (1916) 11 H.K.L.R. 92.

124 In Re the Estate of Ngai I. (1927) 22 H.K.L.R. 105.

125 Tang Choy Hong v. Tang Shing Mo & ors. (1949) 33 H.K.L.R. 58.

126 In Re the estate of Ngai I. (1927) 22 H.K.L.R. 105.

127 Re Tay Lim Tiang decd. [1955] S.C.R. 17.

128 Kho Leng Guan v. Kho Eng Guan [1928–41] S.C.R. 60.

129 (1887) 4 Ky. 325.

130 [1951] M.L.J. 130.

131 Attention is here drawn to the case of Yap Tham Thai (alias) v. Low Hup Neo (1922) 1 F.M.S.L.R. 383; (1925) 6 F.M.S.L.R. 13. Here it was held that succession to the estate of an intestate Chinese domiciled in Selangor should be distributed according to the broad principles of Chinese family law as set out in the Perak Order in Council (No. 23 of 1893) as modified by certain rules of local custom. In coming to this conclusion the court based itself upon the following grounds: (a) There is no Chinese personal law similar to that of Muslims or Hindus; (b) There is a common law of Selangor applicable in this case; (c) The intestate must be regarded as of “British nationality.”

This case was, however, a decision from the Federated Malay States into which English law was never introduced in its entirety. The judge, therefore, seems to have assumed that the Statute did not judg apply in the Federated Malay States and that he was subject to local legislation viz. the Perak Order in Council. Distribution of an intestate estate is now governed by Ordinance No. 1/1958 replacing cap. 71/1930—revised laws of the Federated Malay States, 1935.

132 In the goods of Ing Ah Mit (1888) 4 Ky. 380.

133 In the goods of Lao Leong An (1893) 1 S.S.L.R. 1.

134 Lee Siang Neo and ors. v. Low Hin Tuan and ors. (1925) 5 F.M.S.L.R. 154.

135 Official Administrator F.M.S. for Chua Swee Sim Neo decd. v. State of Selangor and ors. [1939] M.L.J. 175.

136 (1925) 6 F.M.S.L.R. 13.

137 See note 131 above.

138 Preferring instead to rely upon expert evidence on a case by case basis and refusing to be bound by too rigid a scheme of precedent.

139 (1911) 6 H.K.L.R. 149.

140 Report of the Committee op cit. pp. 66–67 and Appendices 18 and 19.

141 Ibid. pp. 306–09 (Appendix 21).

142 [1961] M.L.J. 234.

143 Cap. 82 revised laws of the Straits Settlements 1936.

144 See a note on this case by David C. Buxbaum in (1963) 5 Malaya Law Review 383–87.

145 See Freedman, Maurice, “Colonial Law and Chinese Society,” Journal of the Royal Anthropological Institute (1950) lxxx 97 at 112.Google Scholar

146 [1966] M.L.J. 220.

147 Christian Marriage Ordinance 1956 (Malaya). This is a substantial re-enactment of cap. 109 revised laws of the Federated Malay States, 1935.

148 Ordinance No. 44 of 1952.