Hong Kong’s judiciary
(Supreme Court Ordinance 1844) This ‘inapplicability’ clause is the first instance of ‘strategic ambiguity’ that recurs throughout Hong Kong’s constitutional history, engendering vagueness as a tool of governance. The Ordinance did not define what ‘inapplicable’ meant. Did the exception apply when English law conflicted with local customs? Or only when its application would cause injustice or oppression? Thus, it allowed colonial administrators to determine, case by case, the boundary between English and Chinese law, always retaining the power to decide. This ambiguity would remain unresolved for 127 years until the legislative reforms of 1971. The legal transplant has its merits and shortcomings. It displaced the loosely enforced Qing Code and introduced a structured court system with principles – stare decisis , the presumption of innocence, firm protection of property rights – vital for Hong Kong’s institutional development. Yet, the transplant was an assertion of imperial control. Conducting all proceedings in English excluded the overwhelming majority from meaningful participation in their own legal system. Haydon (1962) and later Yeung (2015) demonstrate that this rendered the Chinese population subjects of, rather than participants in, the rule of law until 1987 when Chinese was made coofficial, thereby diminishing the legitimacy of the judiciary among those it purported to serve. The conflict of laws: Chinese custom and English common law, 1844–1971 The Supreme Court Ordinance 1844 left open the question of how English Common Law and Chinese Customary Law would coexist. Following the extension of Hong Kong in 1898 with the lease of the New Territories, the native population was brought under English Law, which imported ‘all Laws and Ordinances which shall at such date be in force in the Colony of Hong Kong.’ The conflict was most acute for succession, marriage, and property laws. Chinese customary law operated on different premises from English law. Property devolved automatically to the deceased’s heirs upon death under customary practice; the Probates Ordinance of 1897 required formal letters of administration regardless of the deceased’s nationality, imposing an alien procedural framework upon Chinese succession. (Lewis, 1973) Colonial officials compounded these difficulties by fundamentally misunderstanding Chinese customary marriage. They treated it as polygamy, when in fact Chinese law permitted only one principal wife (tsai), with concubines (tsip) occupying a legally subordinate status. (S.C. Chan, 2024) As such, the colonial legal system lacked the cultural competence to administer the customs it claimed to accommodate. Courts attempted to resolve these conflicts by relying on ‘expert witnesses’ to testify on Chinese custom, but this produced contradictory evidence. In Ho Au Shi v. Ho Tsz Tsun (1915), competing Chinese experts disagreed on whether the eldest son could take a double share of an intestate father’s property, with one witness asserting that each village in China had its own distinct custom. (Haydon, 1962) The diversity of Chinese customary practices – with local village norms varying from the centralized Qing Code – made stare decisis impossible. Without reliable precedent, the protection of property rights was severely compromised, and the integrity of the legal system eroded where it mattered most to the native population.
Nevertheless, there were attempts to reconcile the two sets of laws, however imperfectly, and give recognition to Chinese custom. The very existence of this ‘inapplicability’ clause and the courts’
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