Hong Kong’s judiciary
willingness to hear expert evidence on Chinese practice suggests a degree of pragmatic accommodation. Regrettably, the colonial judiciary simply lacked the capacity to adjudicate customs it did not understand.
Resolution came only on 7 October 1971 when the Legislative Council enacted what Lewis (1973) describes as ‘a spate of new and historically significant legislation’ that ‘tolled the demise of Chinese customary law as a living element in the common law of the Colony.’ The Marriage Reform Ordinance 1971, the Legitimacy Ordinance 1971, the Intestates’ Estates Ordinance 1971, and the Adoption Ordinance 1972 established that ‘when Chinese customary law and English law both purported to govern an issue, English law would generally prevail unless injustice or oppression could be shown to be the probable result.’ (Lewis, 1973) Nevertheless, this characterization risks overlooking what was lost. The abolition of Chinese customary law extinguished legal traditions that had governed the native population for centuries, a consequence that affected communities had no meaningful voice in determining. The 1971 reforms resolved legal uncertainty but did so by subordinating one legal tradition entirely to another, a quintessentially colonial decision. Economic consequences: law, stability, and growth The entrenchment of Common Law principles contributed to Hong Kong’s economic transformation but is more complex than a simple causal relationship. Hong Kong’s industrialization in the 1950s and 1960s was driven by multiple converging factors: the influx of Shanghai industrialists who brought capital and technical expertise; an immense pool of cheap refugee labour; the loss of the China trade following the Korean War embargo, which redirected capital from trading to manufacturing; and access to western export markets. (Minardi, 2013) The Common Law’s contribution was specific and significant: the protection of property rights, the enforceability of contracts, and the independence of the judiciary created a framework of legal certainty that reduced risk and attracted foreign investment. (Minardi, 2013) The legal system was thus an insufficient but necessary condition of Hong Kong’s economic success. Attributing the boom to the Common Law alone would obscure the demographic, geopolitical, and policy factors that were equally decisive. The handover: sovereignty, continuity, and the paradox of 1984 Hong Kong’s constitutional future was determined not by its inhabitants but by two sovereign powers negotiating over their heads. The 99-year Lease of the New Territories, signed in 1898, would expire on 30 June 1997. Discussion ‘On the Question of Hong Kong’ began when Thatcher visited Deng Xiaoping in September 1982, followed by 27 rounds of negotiations. Britain sought to maintain Hong Kong’s financial stability and avoid a sterling crisis, achievable only by preserving the commercial legal framework; China demanded full sovereignty without ‘British residue.’ Notably, no Hongkongers participated in these negotiations, an absence that, as Johannes Chen (2014) observes, reflected the failure of democratization under colonial rule itself.
The resulting Sino-British Joint Declaration of 1984 was a landmark of constitutional innovation and ambiguity. Under the Declaration, China would ‘resume the exercise of sovereignty over Hong Kong with effect from 1 July 1997’ (Clause 1) under the ‘One Country, Two Systems’ model. Hong Kong would ‘enjoy
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