This week, we’re travelling to Hong Kong. We’ll take this as an opportunity to touch on the common law system and muse on recent events.
Pack your bags
We’re taking a detour (no pun intended) from brain science to a new travel series.
In this modern age, you would have heard the popular advice about focusing on collecting experiences, rather than things. Travel opens up new horizons in the mind. As a lawyer, I find it a rich source of how and why people do things differently (from traditions to customs to laws).
Related to travel is one of my favourite areas of law—comparative law. Simply put, it involves comparing different legal systems or branches of law. Comparative law is fascinating because it allows us to delve into history, philosophy and moral reasoning.
Instead of sticking our noses in some dusty book, let’s pack our bags and embark on a trip to some of my favourite places in the world. I’ll draw on my travels as a source of inspiration to touch on notable topics of law back in Australia. The aim? To challenge our existing perceptions of the law and its practice.
Take off… and landing
In my final year of law school, I went on exchange to the Chinese University of Hong Kong to take up studies in the Masters of Chinese Business Law programme. Truth be told, my classmates and I spent a lot more time exploring the various islands in Hong Kong than sitting in the library (sorry Mum!?). It was also a time which opened my eyes on how we tend to focus on the laws within our jurisdictions—rather than thinking beyond those horizons.
First, let’s indulge in some travel tidbits. The name Hong Kong (香港) means “fragrant harbour”. This name has historical origins in the cultivation, manufacture and trade of agarwood incense (aquilaria sinensis) in HK. Most of the time, we think of HK as an island. HK, in fact, comprises of three areas (and a lot of islands)—the renown HK Island, the Kowloon region and a wider “semi-rural” area called the New Territories. The population sits at 7.48 million, according to 2018 figures.
Anyone who has been to HK will know the bustle of the inner city, such as the Central district (like any CBD of a busy metropolis). Or the never-ceasing activity of Mong Kok, a shopping and nightlife district. Catching the funicular up to The Peak, the highest hill on HK Island, allows you to view the futuristic cityscape below. There are also some out-of-this-world rooftop bars, like SEVVA and Woloomooloo.
If you think that HK is ostentatious, you might be surprised to hear that it has gems beyond its concrete jungles. You can board a ferry to one of HK’s many islands and spend a day there swimming. My favourite was Cheung Chau Island, which has a pagoda overlooking the half-moon bay. Or hike Dragon’s Back if you’re feeling adventurous, something which is still on my to-do list.
HK locals retain a deep sense of their cultural heritage, despite living in a bustling economic hub. Over a century of British rule has left a distinguishing mark on the mental and physical landscape of HK. As you travel from the international airport by road, you’ll go past the Kwai Tsing Container Terminals, a sea of shipping containers without apparent end (at which point your jaw drops).
One country, two systems
It is evident that the legal system implemented by the British has played an essential role in propelling HK as a trading and financial hub in the region.
However, the history behind HK’s secession to Britain is shrouded in less-than-savoury circumstances—the opium trade. At the height of the opium trade, it was estimated that anywhere from 13% to 27% of the adult male population were addicted to opium. China was consuming between 85% to 95% of the global opium supply at the beginning of the 20th century. This was one of the worst drug epidemics in history.
After failed pleas for the opium trade to halt, the Chinese emperor issued an edict in 1839 ordering the “seizure of all the opium in Canton, including those held by foreign governments … without compensation”. This culminated in the First Opium War (1839–1842) and the Second Opium War (1856–1860), where the Chinese warships (known as “junks”, which they certainly were) found that they were no match to British naval forces. China ceded Hong Kong Island and the Kowloon Peninsula in perpetuity, and the New Territories for a period of 99 years.[*] The loss of HK was a sore spot for China and remains so to some extent to this day, given its view that it had the moral high ground.
On 1 July 1997, Britain returned HK to China, where it now operates under a “one country, two systems” framework. This was agreed to in the 1984 Sino-British Joint Declaration on the Question of Hong Kong between the then British Prime Minister Margaret Thatcher and the Chinese Premier Zhao Ziyang. Importantly, the joint declaration guaranteed that HK would have special status for 50 years. What happens afterwards is anyone’s guess.
HK is formally known as the “Hong Kong Special Administrative Region of the People’s Republic of China (HKSAR)”. HK’s relation to the People’s Republic of China (PRC) is governed by the Basic Law of the Special Administrative Region of Hong Kong (Basic Law), which was passed by the PRC legislature in 1990.
Articles 2, 5 and 8 of the Basic Law are of particular importance. Article 8 allows HK to keep its “laws previously in force”, including the common law.
“The National People’s Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law.”
“The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years.”
“The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.”
In recent weeks, differences between the legal systems of China and HK have been brought to the fore. Large numbers of HK residents took to the streets to protest against a proposed extradition law. There was little consultation on the law, which would allow extraditions to the PRC and Taiwan. To justify the law, the HK government pointed to a case where a 20-year-old Hong Kong man had murdered his girlfriend in Taiwan and escaped to Hong Kong. He can only be tried for murder in Taiwan.
The proposed law spooked the local residents as well as the business community. The latter were primarily concerned about implications on business operations in HK. The latest upheavals have resulted in diplomatic tensions between the UK and China.
At this juncture, it is worth revisiting the concept of the common law (even as a lawyer) and noting some of the challenges that it faces in the 21st century.
The common law
The common law originates from Britain. It is practised (in varying forms) in countries with a history of British rule, including Australia, New Zealand, Singapore, Malaysia, Canada and India. The distinguishing feature of the common law is that it draws on a vast body of judge-made law through decisions in courts and tribunals.
The common law system grew from the practices of Norman kings in England. Those kings found that as they “held court” in different regions, they had little local knowledge and could only deal with petitions by applying the rule that like cases should be treated alike. This is the principle of stare decisis, which forms the basis of judicial precedent—being to decide a case in the same way as previous similar cases.
So where do we start?
The defining moment of early English history was the conquest of England in 1066 by William the Conqueror, Duke of Normandy. Following that time, English kings would gather trusted advisers around them known as the Curia Regis—the king’s court. Gradually, the king appointed “justiciars”, officials who represented them in dispensing the law.
The Curia Regis eventually “gave birth to a body of professional judges whose job it was to hear disputes (or ‘the pleas of’) common folk”. This was known as the Court of Common Pleas. (P.s. Lawyers, you now know where the word “pleadings” come from).
There was also the Court of Exchequer, consisting of financial advisers who dealt with matters of royal revenue. The name “Exchequer” derived from the chequered-patterned tablecloth which covered the table at which the advisers sat. Sophisticated stuff.
Finally, there was the King’s Bench or Coram Rege. It dealt with disputes involving the king or any royal interests.
Together, these institutions—the Court of Common Pleas, the Exchequer and the King’s Bench—formed the common law courts. They gave rise to the common law system that we know today. The intellectual effort which went into developing the common law had one goal—consistency:
“The different ‘laws’ that had governed various parts of England tended to disappear. There emerged a general body of principles and rules that were applied in the King’s Courts at Westminster and carried through the realm by the Assize judges on their circuits. This part of the law was ‘common’, and was to be contrasted with anything that was particular, extraordinary or special, such as surviving local custom, canon law or Roman law. The essence of common law was that it grew through judicial decisions recorded by lawyers.”
— J.R. Spencer in Jackson’s Machinery of Justice (1989)
Fast forward 800 years
The transplantation of the common law, essentially a regional quirk, to numerous modern-day countries across the world involves an interesting foray into geopolitics and history. One strength of the common law, compared to the civil law system is its ability to evolve over time, often to reflect societal expectations:
“The common law is not a fixed system of immutable rules. Rather, it has an inherent capacity to grow and develop by responding to changed circumstances even by correcting its own mistakes. If we look at the English common law through the lens of history, we perceive how its rules and principles have developed and changed over its long life of more than 800 years. We also perceive that the change has been slow, seemingly imperceptible in a short time span.”
— Sir Anthony Mason in Hong Kong’s Court of Final Appeal (2013)
Perhaps one major misconception amongst the general public about the common law system is that judges are all-powerful, all-seeing and the source of all laws. This cannot be further away from the truth. Taking Australia as an example, while areas like contract and property law are heavily influenced by common law cases, a significant portion of our laws comes from legislation (also known as “statute”) which are passed by the relevant Parliament.
In fact, one might say that the power of judges across most common law countries is fettered or at least directed (compared to previous eras) by legislation that govern specific areas of law. Legislation is a response to the slow-moving nature of the common law, given its ad-hoc ability to determine a matter only when it happens to crop up in a case. In this sense, our legal system in Australia has elements of both common law and civil law, the latter of which we will discuss further in the next blog post.
HK occupies a strange space. While it retains its common law system, it ultimately sits within the framework of the Basic Law and has a legislature that can pass laws that, at times, may run contrary to the overall will of the people.
Next week, we’ll check out the Chinese legal system for some comparative goodies.
- S. Young & Y. Ghai (eds.), Hong Kong’s Court of Final Appeal: The Development of the Law in China’s Hong Kong (2013) Cambridge, Cambridge University Press.
- C. Cook, R. Creyke, R. Geddes, D. Hamer, Laying Down the Law (2009) LexisNexis Butterworths.
- J.R. Spencer, “The Common Law” in Jackson’s Machinery of Justice (1989) University of Cambridge Press.
- Article updated 8 July 2019 to include images.
- [*] Correction on 16 July 2019: Thank you to our reader N, who picked up on this error by pointing out that “Hong Kong Island and Kowloon were both ceded to Britain in perpetuity. Only the New Territories were leased for 99 years, starting in 1898”. Check this source for a more detailed history.