The Common Law System in Chinese Context

Berry Fong-Chung Hau

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9780873328456
• eBook ISBN: 9781315488233
• Topic: Scienze sociali
• Subtopic: Teoria e pratica del diritto

Under the 1984 Sino-British Joint Declaration on the future of Hong Kong the previous capitalist system and life-style shall remain unchanged for 50 years. This concept has been embedded in the Basic Law of Hong Kong. The future of the Common Law judicial system in Hong Kong depends on the perceptions of it by Hong Kong's Chinese population; judicial developments prior to July 1, 1997, when Hong Kong passes from British to Chinese control; and the Basic Law itself. All of these critical issues are addressed in this book. It applies survey and statistical analysis to the study of the attitudes toward, and the values inherent to, the Common Law judicial system in the unique cultural and economic milieu of Hong Kong in transition.

1

Introduction

1.1. The Scope of This Book

In an earlier edition of Constitutional and Administrative Law,¹ Stanley A. deSmith observed that the outlawing of racial discrimination in England in fact reduced the incidence of discriminatory conduct. This reduction was explained as the result of law-abiding citizens’ desire to be respectable and respected. Although unrelated to the theme of his book, his observation has raised a question: To what extent can law change the social values of an individual? There is always a limit to what law can do to change people’s values, but successful change very much depends on the attitudes and values of the people toward the law.

When the Common Law was introduced to Hong Kong in 1843, no attempt was made to consider its impact on the Chinese population there. The early colonial administration contemplated that the Common Law would bring justice to the Chinese population subject to “local circumstances” as a general pattern of British policy. The only possible outcome was the use of the Common Law as an instrument of social control in order to make the Chinese population of Hong Kong submit to the new colonial order. The judicial system would inevitably become biased toward the cultural values of the colonial power just as the Common Law judges of Hong Kong would inevitably use English legal reasoning and English cultural values when interpreting Chinese law and custom.

The anthropological jurists would assert that laws could not change the values of the people but rather should fit into their values. Various studies have shown, however, that law in fact can change people’s values.² One explanation of the results of these studies is that when the people regard their beliefs and values as a lost cause, prohibited by law, they abandon them and readjust to the new ones.³ After all, some form of social control is necessary for any society to function. The confidence of the Chinese population of Hong Kong in the Common Law judicial system strengthens their respect for the law. Although the legitimacy of the Hong Kong government is questionable in the minds of most of the Chinese population in Hong Kong,⁴ there is no evidence that the legitimacy of the law has ever been challenged.

The regular application of law and the use of judicial proceedings to settle disputes should be expected to influence the people’s behavior and social attitudes.⁵ Since colonization by the British, Common Law has become the dominant legal culture in Hong Kong. An ideal question is, therefore, to what extent has the Common Law judicial system actually shaped Chinese cultural behavior? If Common Law is a successful instrument of social control, its prevalence in Hong Kong as the dominant legal culture for more than 140 years should now be reflected in the general consciousness of the people.

The Common Law culture, the English governmental and educational systems, and the environment in Hong Kong may have influenced and altered the commercial and other structures of the society. Hong Kong society has become more industralized and modernized. As a result, heterogeneity supplanted homogeneity. It is not feasible, therefore, to measure the extent to which the Common Law culture alone has changed the values of the Chinese population in Hong Kong as the population has undergone other environmental changes as well. We are concerned with the effect these changes have on the attitudes and values toward law in Hong Kong. If the attitudes and values of the people toward the law tend to conform to Common Law culture, then we can conclude that the application of Common Law in Hong Kong may be maintained after 30 June 1997, when the People’s Republic of China resumes sovereignty over Hong Kong.⁶ Otherwise, there will be a conflict between the dominant legal culture and the continuous, but changing servient legal culture of the population.

There is a difference between the values and perceptions of Common Law lawyers and the Chinese population of Hong Kong.⁷ A judicial decision might well be legally sound, but it could also be condemned as harsh by the public if it does not conform with social reality.⁸ Thus, the second question our study must address is this: How and to what extent does the disparity between legal principles and practices and social norms affect the successful application of the Common Law judicial system in Hong Kong?

The people’s confidence in the judicial process is vital to its success. A lack of confidence in the legal system may yield a lack of cooperation. At Common Law, the doctrine of nemo judex in causa sua is one of the two rules of natural justice. In R v. Sussex JJ, ex.p. MacCarthy,⁹ Lord Hewart said that it was “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” Thus, one needs to know the opinions the Chinese population hold toward the judicial system in order to: (1) determine how successfully the Common Law is applied in Hong Kong, and (2) consider whether the judicial system can be maintained when the People’s Republic of China resumes sovereignty over Hong Kong in 1997. The attitudes and values of the Chinese population toward judicial proceedings, the adversary system, the judiciary, the legal profession, and the jury system, as well the attitudes and values of the legal profession, will be investigated. As Justice Oliver Wendell Holmes (1841–1935) said, “Every opinion tends to become a law.”¹⁰

There are certain circumstances, however, in which it may be argued that law should not conform to public opinion. The legislatures in most developed countries have abolished the death penalty, despite acting contrary to public opinion in some cases. There are circumstances where equity should dictate. Albert Venn Dicey (1835–1922) cited the Roman Catholic Relief Act (1829) as an example of how the British Parliament abolished some penal provisions against Roman Catholics to protect their rights of citizenship, contrary to public opinion.¹¹ Conversely, public opinion can provide a check and balance on the authority of the state. Shortly after the Second World War, MacKenzie King, then prime minister of Canada, and his liberal government decided to deport nearly half of the entire Japanese Canadians, including those born in Canada, to Japan.¹² Although the deportation orders were upheld by the Supreme Court of Canada in 1946, public opinion forced King to abandon this law, as Canada was a country of immigrants.¹³ Such checks and balances, however, can operate more successfully in a democratic country.

1.2. The Case for Survey Data in Jurisprudential Research

In an authoritarian state, public opinion can hardly be measured. The People’s Republic of China will resume sovereignty over Hong Kong on 1 July 1997. Therefore, it is now timely to capture the attitudes and values of the Chinese population of Hong Kong toward the Common Law judicial system while Hong Kong is still a quasi-police state¹⁴ under the direct rule of a democratic government in Great Britain.

In a theoretical approach, conclusions are formulated based on observations and historical analysis. The generalized theories cannot be verified and are often difficult to measure objectively. Although statistical methodology in jurisprudence is not perfect, the reliability and validity of the information collected is subject to objective review. One of the pioneers in the field of law and public attitudes is the famous jurist Albert Venn Dicey. But his leading work, Lectures on the Relation between Law and Opinion in England during the Nineteenth Century, was regarded as flawed as his discussion was based on speculation rather than on empirical data.¹⁵

According to any standard social science research manual, a reliable and valid set of data, whether documentary or empirical, is one that is accurate, verifiable, free from bias, and of the proper time frame. To establish such a set of data from documentary sources and to analyze the results, it is necessary to filter valid data from the mass of documentary information and historical records, i.e., to distinguish between formal and informal information. After establishing a valid set of data, analysis can be performed. This goal may be difficult as the quality of the data is dependent on the techniques of the researcher who has limited control over its reliability and validity.

The limited ability to record observed events accurately and the selective perception and memory of the observer may bias the conclusion drawn. There is also a problem of idiosyncrasy in observation, as well as selectivity in the collection of data. Unfortunately, opinions, hearsay, and personal experiences often are the only sources of information on which most jurisprudential schools have relied. Adam Podgorecki pointed to the following factors in using survey data to study the acceptance of the law: “(1) lip-service and declaration (purely external endorsement of certain values often made to meet clearly perceived social expectations); (2) internal acceptance (commitment to internalized values which sometimes are not externally expressed; for example, in cases where values could be regarded as deviant or where there is a commitment to values that is not strong enough to be a vehicle for corresponding behavior); and (3) behavior that is consistent with the expressed values.”¹⁶

Documentary or historical data can provide some clues about the success of the introduction of a legal system in a different cultural setting, if a reliable source of data is not available from interviews and surveys. A more reliable and valid set of data can be obtained, however, through current interviews and surveys using proper sampling techniques. The results can be measured using statistical procedures to verify the accuracy of the data and to determine whether it is free from bias. Often this is essential as documentary data have only limited applications, and sometimes do not serve the purpose of a specific study. Appropriateness and time frame are the key factors to be considered in designing such interviews and surveys. The final conclusions are more reliable than the assumptions and conjectures of the traditional jurists.¹⁷

1.3. Conclusion

In traditional Chinese legal culture, as well as in the Common Law, law and legal theory are formulated by a group that makes up a small portion of the population. In one case, the group consists of ruling elites educated in Confucian classics, and in the other of judges and legislators trained at Oxbridge.¹⁸ Therefore, laws in these cultures have often been said to reflect the desire of the ruling classes to maintain the status quo.¹⁹ Their attitudes and values toward law may be formed by self-interest. A study of the attitudes and values of the Chinese population toward law is necessary to ascertain how law can serve their interests.

In our study, most of the information was collected through interviews and statistical surveys. The resumption of the exercise of sovereignty over Hong Kong by the People’s Republic of China in 1997 provides a limited opportunity to examine these matters. Although the methodology used here is somewhat exploratory and speculative, the historical moment would be missed forever if the opportunity to conduct such a study was not now taken.

2

The Introduction of Common Law to Hong Kong

The colonization of Hong Kong by the British¹ marked the beginning of a fundamental transformation in the structure of the indigenous Chinese society. In 1841, the colony had a population of approximately 90,000.² The economy was predominantly based on agriculture and fishing. In 1871, the population was 180,000, and by 1901 Hong Kong had a population of 300,000.³ Internal strife and unrest in China brought waves of immigrants to Hong Kong, notably during the Taiping Rebellion (1851–1864), during the unrest that followed the first Republic in 1911, and as a result of the political strife during the late 1940s. Following a setback during the Japanese occupation of Hong Kong between 1941 and 1945, there has been continuous population growth in Hong Kong. Some of the refugees who entered Hong Kong were academics, professionals, and prosperous businessmen who contributed much to the development of contemporary Hong Kong. At present, Hong Kong has a population of more than five million people and is a leading commercial and industrial center in the world.

The introduction of Common Law to Hong Kong provided the population with a stability necessary for an economic and social revolution that set the colony on a course toward becoming a modern city state. The Common Law, the dominant legal culture, both contributed to and was affected by economic and social changes and cultural conditions. The transformation of the economy contributed much to development in the Common Law of Hong Kong. The most notable development was the corruption prevention legislation, introduced in 1971,⁴ enacted to meet the modern economic environment and promote international investors’ confidence.⁵ The needs of business entrepreneurs also caused the government to propose changes to the trial procedures for commercial crimes by eliminating juries in complicated civil cases, amid protest from the legal profession.⁶ The impact of the economic changes had been the urbanization of the New Territories and the Westernization of the Chinese population, both of which led to the diminishing role of Chinese law and custom⁷ as a source of law in the 1970s.⁸

2.1. The Arrival of Common ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Foreword
• Series General Editors’ Forword
• Preface
• Acknowledgments
• 1. Introduction
• 2. The Introduction of Common Law to Hong Kong
• 3. Law and Social Change in Hong Kong
• 4. The Contrast between Chinese Culture and a Standard Model Common Law Judicial System
• 5. The Common Law Index
• 6. Law and Opinion in Hong Kong
• 7. The Absorption of Common Law Notions by the Chinese Population of Hong Kong
• 8. The Absorption of Common Law Notions by the Basic Law of Hong Kong
• 9. Conclusion
• Epilogue
• Appendices
• Notes
• Glossary
• Table of Cases
• Bibliography
• Index