A Taie of Two Légal Systems: The Interraction of Common Law and Civil Law in Hong Kong - article ; n°4 ; vol.51, pg 917-944


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Revue internationale de droit comparé - Année 1999 - Volume 51 - Numéro 4 - Pages 917-944
28 pages
Source : Persée ; Ministère de la jeunesse, de l’éducation nationale et de la recherche, Direction de l’enseignement supérieur, Sous-direction des bibliothèques et de la documentation.



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M. Chenguang Wang
M. Guobin Zhu
A Taie of Two Légal Systems: The Interraction of Common Law
and Civil Law in Hong Kong
In: Revue internationale de droit comparé. Vol. 51 N°4, Octobre-décembre 1999. pp. 917-944.
Citer ce document / Cite this document :
Wang Chenguang, Zhu Guobin. A Taie of Two Légal Systems: The Interraction of Common Law and Civil Law in Hong Kong.
In: Revue internationale de droit comparé. Vol. 51 N°4, Octobre-décembre 1999. pp. 917-944.
doi : 10.3406/ridc.1999.18188
http://www.persee.fr/web/revues/home/prescript/article/ridc_0035-3337_1999_num_51_4_18188R.I.D.C. 4-1999
Chenguang WANG & Guobin ZHU *
On 1 July 1997, the People's Republic of China (the "PRC") reassu-
med the exercise of sovereignty over Hong Kong after it had been governed
as a colony by the British government for more than 150 years accounting
from the time of the cession of Hong Kong island from China l. On the
same date, the Basic Law of the Special Administrative Region
(the "Hong Kong SAR") came into effect. Nevertheless, the change of
sovereignty and the imposition of the new Basic Law came together with
a solemn assurance that, the common law system imported by the British
in Hong Kong, as well as other basic social systems, should be maintained
intact according to Article 8 of the Basic Law of the Hong Kong SAR.
This assurance is provided by article 8 which states that : "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 SAR".
* WANG Chenguang, Associate Professor, School of Law of City University of Hong
Kong ; BA, LLM (Peking University, PRC), LLM (Harvard) and PhD (Peking University).
ZHU Guobin, Assistant Professor, School of Law of City University of Hong Kong ; BA,
MA (People's University, PRC), LLM (HKU, Hong Kong) and PhD (Aix-en-Provence,
This 1 YASH report Ghai, reflects Hong the authors' Kong's New views Constitutional only. Comments Order, and criticism Hong Kong: are most Hong welcome. Kong
University Press, 1997, p. 4. REVUE INTERNATIONALE DE DROIT COMPARE 4-1999 918
The Basic Law also clearly prescribes that the socialist system policies
shall not be practised in the Hong Kong SAR, and the previous capitalist
system and way of life shall remain unchanged for 50 years (art. 5). The
maintenance of a separate common law system as well as the subsisting
China" framework are capsuli- social system and way of life within a "big
zed into a simple but much profound concept of "One Country Two
Systems", which was invented by Chinese leaders and will have great
impacts on reunification of China.
The report will be divided into two parts. The first part deals with
the general theoretical issues of comparative law in Hong Kong, in particu
lar the interface and interaction of Hong Kong common law and the
PRC's civil law traditions. The authors will examine these phenomena
from comparative law perspective. In the second part, the authors attempt
to explore and explain roots of legal controversies that have been or will
be generated by the interface of these two different legal as well as
political systems. In the process of such a preliminary examination of the
recent constitutional cases, the authors also critically analyse the relevant
judicial opinions, which demonstrate how difficult it is to solve the tension
and the dilemma (if not an impasse) that are brought about by the meeting
or association of two legal systems with different legal traditions and
A. — Theoretical Observation and Analysis
1. The Hand-over of Hong Kong to China Renders Comparative Law a
Necessity in Hong Kong
The maintenance of a separate and different legal system within a
sovereign country purposes to provide an assurance to Hong Kong people
and the international community and to preserve the prosperity of Hong
Kong after the hand-over. Albeit it deserves plaudits for its political
creativeness and courageousness, it leaves many legal and practical issues
unanswered or concealed, due to the novelty of these issues, diplomatic
rows between the Chinese and the British governments, antagonism among
different political factions in Hong Kong and, more importantly, the diffi
culty in establishing an umbilicus between the common law of Hong
Kong and the civil/continental law of the Mainland. The legal inadequacy
or lacunas imbedded in the Basic Law have caused many serious debates
and controversies over issues of constitutional nature, not only within the
legal profession but also in all spectrums of the whole society. Some of
these are such as to be described as constitutional crises 2
2 "Controversy over the Jurisdiction of the Court of Final Appeal", in Ming Pao, 9 Feb.
1999, A9, Hong Kong. WANG C. ET ZHU G. : HONG-KONG 919
or a make-or-break time 3 (The relevant cases will be discussed in Part
II of this report.)
From comparative law perspective, Hong Kong after the hand-over
presents a rare and, perhaps, a unique case for comparative study and
practice. While comparative law scholars elsewhere are arguing whether
comparative law is a method or a distinct field of knowledge or science 4,
Hong Kong legal scholars and practitioners have, consciously or
unconsciously, been applying comparative methodology and knowledge
to shape the evolving and changing legal system of Hong Kong. To them,
comparative law is a more practicable and indispensable instrument for
both legal research and practice5. In this sense, comparative law in
Hong Kong transients the traditional pure academic domain and scholastic
forum, and becomes a functional practice for re-institutionalisation and
social engineering. Why is there such a case in Hong Kong? The answer
we provide is that, practically, the lawyers in Kong need to use
comparative law to solve real problems and legal issues, which have been
and will continue to be brought about by the hand-over and the transition
from a British colony to a new legal framework labelled "One country
Two systems". These problems and issues are particularly perplexed by
the fact that the two systems are of drastically different legal traditions
and political nature. At the macro level, Hong Kong needs to construct
a new constitutional framework that is based on the Basic Law of the
Hong Kong SAR and that, through the Basic Law, is posited within the
Chinese structure. The role and function of the Court of
Final Appeal (the "CFA") of the Hong Kong SAR, the relation between
the Central Authorities and SAR governments and their respective powers,
the interpretation of the Basic Law, the effects of legal rules of the
Mainland in Hong Kong, etc. are issues of contraversies triggered by such
reinstitutionalization and tensions between two legal traditions. At the
micro level, legal practitioners and judges in Hong Kong in dealing with
cross-border business transactions and other matters, have to use constantly
not only Hong Kong legal terms and rules, but also those pertinent to the
mainland legal system. It is of no exaggeration that most of lawyers and
judges in Hong Kong should know how to deal with and live with the
legal rules and systems that are foreign to them. In short, the hand-over
offers rich opportunities to boost comparative law study and practice in
Hong Kong.
2. A Common Law Enclave within A Civil Law Environment
As its formal and institutional ties with the British common law
being severed, Hong Kong legal system now has become a law
3 "SAR Faces Make-or-Break Time", in South China Morning Post, 9 Feb. 1999,
Hong 4 Kong. Jerome HALL, Comparative Law and Social Theory, Binghamton, New York : Loui
siana State University Press, 1983, pp. 7-11.
5 The authors by no means intend to create a false picture that most of Hong Kong
legal scholars and practitioners are comparative jurists. Nevertheless, they are probably the
most frequent users of comparative law methods and knowledge in their research and practice
even they are doing so unintentionally or unawarely. REVUE INTERNATIONALE DE DROIT COMPARE 4-1999 920
enclave within a civil law system. What will be the fate of this small
enclave? Could it continue along the track of the common law tradition?
Before answering this question, we may look at some similar situations
in other countries.
The legal enclave of Louisiana in the United States and that of
Quebec in Canada are in similar and comparable situations. Hong Kong,
after its return to China, joins this unique group. Nevertheless, there are
certain distinct features that make Hong Kong case different from its
First of all, Hong Kong adopts fundamentally different political, legal,
economic and social systems from that of the mainland of China, while
in other countries, the enclaves adopt social systems of the same nature
in their respective parent countries.
Secondly, China adopts a unitary state structure, while the US and
Canada both adopt federal system. The high degree of autonomy enjoyed
by Hong Kong SAR did not change the pattern of the structure of the
PRC. Legally, Hong Kong SAR is a subordinate special administrative
region under the principle of One Country although it enjoys even higher
degree of autonomy, such as a separate monetary system.
Thirdly, unlike federal system, the Basic Law of Hong Kong SAR
that is understood by many as the mini-constitution for Hong Kong is
not made by Hong Kong legislature but by the National People's Congress
(the "NPC") of the PRC on the basis of a draft prepared both by Hong
Kong and the mainland experts and participants.
Fourthly, Hong Kong is the first case of a common law system within
the context of civil law system while in the eases of the US and Canada,
the civil law system is the legal enclave surrounded by the common law
environment. This difference deserves further analysis, since law
is believed to be more flexible and adaptable to social changes. Without
a big community and geographical space for sustaining it, the common
law in a small place will have difficulty in its continuation. These distinc
tions make the Hong Kong case an unprecedented legal phenomenon.
Therefore, the above questions become even more alarming.
Among the two precedents that are Louisiana and Quebec, Louisiana
is probably a weak enclave. Although in the State of Louisiana, a civil
code and the salient features of civil law have been maintained, but it
has much closer ties and affinity with American common law than with
French civil law, subsisting within an overwhelming law culture
and framework (K. Zweigert & H. Kotz, An Introduction to comparative
law, 3eed. Oxford university Press, 1998, p. 115). Distinct features of
one legal family can keep the appearance of that family, but legal culture
and affinity, plus the surrounding cultural ambient and economic
ties, are more decisive factors for its nature. Will Hong Kong be another
Quebec, unlike Louisiana, has been a "mixed jurisdiction", that is,
a jurisdiction where a Franco-civilian tradition is applied in matters of
private law and an Anglo-common law prevails in of
public law, and even in large sectors of commercial law such as banking, C. ET ZHU G. : HONG-KONG 921 WANG
bills of exchange, bankruptcy, etc. Because of this peculiar legal situation,
one can readily understand that Quebec has been described as a "living
model of comparative law" 6. Half civil law and half common law consti
tute a mixed model. Hong Kong, since being guaranteed by the Sino-
British Joint Declaration and the Basic Law to continue its common law
system, will unlikely become a mixed jurisdiction.
The reasons for such unlikeness are listed hereby :
(1) There are essential differences between Hong Kong's fundament
al social systems and those of the Mainland as we mentioned above.
Common law in Hong Kong does not only represent a difference in legal
techniques, but also differences in fundamental systems. People in
Hong Kong believe that the rule of law is the guarantee for the success
of Hong Kong's capitalist system and the prosperity of the prosperity,
therefore, the maintenance of common law in Hong Kong is no longer a
pure technical issue.
(2) The overall system of the Hong Kong SAR has been sanctioned
by the Joint Declaration (an international treaty), and the Basic Law
(national law of the PRC) and the principle of "One Country Two Systems",
which has implications not only to Hong Kong but also to Macao and
Taiwan. Destruction of Hong Kong's common law tradition will destroy
the showcase of this policy and will affect the future unification of Macao
and Taiwan.
(3) Although the common law system was imposed by the British,
it has taken roots in the local community through history. Its perfection
and effects in social life contrast sharply with the imperfection and impo-
tency of the nascent legal system in the Mainland. In such a situation,
only a few would suggest to replace it with the mainland civil law system.
(4) Although Hong Kong's common law system is surrounded by a
huge civil law environment, it provides a primordial guarantee for maintai
ning Hong Kong as an international trade and financial centre. Its common
law tradition makes many major business partners, such as the US, Britain
and other countries that adopt common law tradition, fell comfortable in
doing business in Hong Kong.
(5) In fact, many measures have been employed by the Basic Law
to retain the common law tradition in Hong Kong, such as recruiting
expatriate judges into Hong Kong courts, keeping the legal service market
open to lawyers from other common law countries, maintaining common
law teaching in legal education, etc.
Existence of these guarantees does not exclude the possibilities of
being influenced by the Chinese civil law tradition. To certain extent, the
influence is inevitable and significant. But such influence does not intend
6 Paul-A. CREPEAU, "Comparative Law, Law Reform and Codification : National and
International Perspectives", Asia Pacific Law Review, Special issue, n° 1, 1994, p. 97. 922 REVUE INTERNATIONALE DE DROIT COMPARÉ 4-1999
to change the very nature of the common law tradition in Hong Kong.
On the contrary, it may help the law in Hong Kong to develop
along its own special route that is shaped by the particular social conditions
after the hand-over. The changes could be induced by the following
factors :
(1) The transfer of sovereignty has placed Hong Kong common law
within the framework of the Chinese legal system by the Basic Law.
(2) The Privy Council has ceased to hear appeals from the courts
of Hong Kong. Precedents arising from British and other common law
jurisdictions will have no formal binding effects on the courts of
Hong Kong, although judges, sharing the same légal affiliation and having
been used to refer to doctrines and precedents in British or American
common law, may still find them persuasive and apply them as legal
grounds. Bringing foreign judges from other common law jurisdictions
into the C.F.A. and maintaining foreign judges in other courts of
Hong Kong SAR is apparently a counter-measure to maintain and further
its ties with the main sources of common law.
(3) Chinese is being used as an official language by the executive
authorities, legislature and judiciary in Hong Kong (it is not widely used
at higher levels of courts for the moment). It can be envisaged that many
cases will be tried in Chinese (local judges speak Cantonese in the courts)
and their judgements written in Chinese. Since legal translation cannot
ensure that the original texts and translated versions are perfectly identical,
using an alien language such as Chinese in a common law system may
lead common law terms (in English) being misinterpreted or their meanings
being either enlarged or narrowed. Accumulations of such new legal terms
in Chinese will provide accessibility of law to local Chinese citizens, but
at the same time will gradually pave its own ways of development.
(4) Oriental traditions and culture are deeply rooted in Hong Kong
society. Scholars have made study into the uniqueness of corporate gover
nance and ways of business transactions, in which, unlike the western
patterns of business management and transactions, family ties and personal
relations play significant roles. Law as a part of the entire social structure
cannot but follow social and cultural changes. Once the colonial control
is removed, the territory is likely to find its own ways of developing
Hong Kong capitalism and, likewise, a locally seasoned common law.
(5) Hong Kong's tight economic and commercial, as well as political
ties with the Mainland would certainly affect the development of the
Hong Kong legal system, which will ultimately influence the common
law of Hong Kong. The economic ties with the Mainland are so strong
nowadays that business transaction with the Mainland is the major factor
for Hong Kong economic growth. The recent Asian financial crises have
proved the importance of this factor. Through negotiations, settlement of
disputes, arbitration and legal actions involving parties from both sides,
Chinese civil law legal terms and concepts have been used among the
business and legal professions. Bit by bit, the impact of the interchangeable WANG G. ET ZHU G. : HONG-KONG 923
use of legal terms may allow the Chinese legal terms and concepts to
be introduced into the Hong Kong common law practice.
(6) The constant flow of people from both sides causes many unpre-
dicted legal problems that cannot be easily settled by one side or by using
one legal apparatus alone. For example, the recent ruling decided by the
CFA on the right of abode raises a basic question of how to deal with
matters involving the legal system of the other side. If those who got to
Hong Kong the "one-way "illegally" permit" issued are persons by the Mainland with right authorities of abode to in them Hong will Kong, be
illegal and therefore an intrusion in Hong Kong's autonomy. Nevertheless
for those who are now living in the Mainland, it is difficult to identify
who are really children of Hong Kong permanent residents. How to justify
and prove their identity? Who is in a better position to identify their true
status? From practical perspective, it is the mainland authorities. Could
Hong Kong authorities impose legal duties on the mainland authorities to
do so? Probably not, since the SAR government as a local government
has no such an authority. Could the mainland authorities do so? The
answer is the same, since it has no authority to impose any legal rule
on Hong Kong people/residents. This matter demonstrates clearly the dis
pensability of understanding and cooperation of both sides.
These factors would certainly require Hong Kong common law to
follow a particular track different from the British model. As a result of
it, this common law would be steadily influenced by Chinese civil law
tradition. Even though its main features will no doubt be preserved. The
common law in Hong Kong will probably follow the American path in
departing sharply from the English common law, the parental role model
for both7. If so, the common law in Hong Kong could be the common
law of Hong Kong. Nevertheless, Hong Kong will not be another Louisiana
for its common law tradition will be maintained both in terms of appearance
and nature. And it will not be another Quebec to become a mixed jurisdic
"Separation within unity" will be the future of Hong Kong common
law. A small common law enclave has a great potential and possibility
to grow further. Nevertheless careful attention should be paid to the above-
examined factors and due efforts should be exercised to guard against
these factors from damaging the foundations of the system.
3. A New Constitutional Framework for Hong Kong SAR and the Related
A new constitutional framework of Hong Kong has to be designed
to accommodate post- 1997 Hong Kong under the principle "One Country
Two Systems". Despite the pledge of no changes of legal system, as a
matter of fact, the changes are predictable and inevitable. These changes
7 WANG Chenguang, "A Case of Common Law Sense", in South China Morning
do not intend to modify the nature of common law and to shake the
foundation of it, but rather to preserve it under an entirely new constitutio
nal framework. It cannot be said anyhow that there is no risk of encroaching
upon or damaging common law system at all. If issues, such as those
mentioned above, can not be adequately addressed and satisfactorily sol
ved, the sincere desire of maintaining the common law in Hong Kong
may be defeated.
The change of the constitutional framework is caused by the transfer
of the sovereignty over Hong Kong back to China and the adoption of
the Basic Law for the Special Administrative Region. The
Basic Law was drafted and enacted on 4 April 1990 for prescribing the
basic systems of the Hong Kong SAR. This Law is not by itself a basic
law of ultimate authority, but a basic law drafted and enacted on the
bases of the Chinese Constitution 8. The hand-over actually signals a
fundamental change of "grundnorms", as described by Prof. Albert Chan 9.
Grundnorm is a concept invented by Kelsen, which suggested that every
legal order is a system of legal norms with its hierarchical ranks. The
highest norm is the grundnorm that is the grounding of validity of all
the other norms. As the common law system in Hong Kong ceased its
constitutional connection with the British legal system and entered into
its bond with the Chinese Constitution, the grundnorm was
thus changed.
The change of the grundnorm usually represents a fundamental, if
not revolutionary, change in most societies. Nevertheless, such a change
in Hong Kong intended a ceremonial change of a cloak that should keep
the entire common law system intact. "The water in the well not
interfere with the water in the river." This proverb uttered by a Chinese
leader demonstrated the intention of the Central Authorities to preserve
the basic systems in Hong Kong. But the later development of transition
has proved that the change, although intended to be cosmetic, has not
been an easy and smooth process. "The water in the well" and "the water
in the river" may appear distanced, but actually engage in constant inter
flow underground. The reasons for such difficulties are the follows.
First of all, the "through train" for transition was derailed after former
Governor Mr. Pattern's political reform and as a result of the political
contentions between the Chinese and British governments over many
highly controversial constitutional issues. For example, the most destruc
tive effects were caused by the election of the first legislative body
(Legislative Council, or LegCo) and the establishment of the Provisional
Legislative Council ("the PLC"). The legislative election was organised
on the basis of the constitutional reform proposed by Mr. Patten without
any prior consultation with the Chinese side on the matters regarding the
8 Article 31 of the Chinese Constitution authorises the State to establish special administ
rative regions with different systems.
9 Albert CHEN, "Legal Interaction between Hong Kong and the Mainland after Reunifi
cation : Retrospect and Prospect'', paper presented at Conference on Judicial Assistance
under One Country Two Systems, 6 Sept. 1999, p. 1. WANG C. ET ZHU G. : HONG-KONG 925
transfer of sovereignty. Then the Chinese Government decided not to let
this LegCo survive after the transfer. The PLC was thus designed in a hurry
in early 1996 and implemented in July 1997 by the Chinese Government to
fill in the "legislative vacuum". The diplomatic and political rows pre-
shadowed the glamour of the Basic Law and accumulated many thorny
legal issues for the then to-be-effective grundnorm. Institutionally, the
political contests resulted into two separate legislative bodies backed up
by two sovereigns. The impasse between the two bodies and the replace
ment of one by another transferred the political contests into constitutional
battles directly aimed at their constitutional ground, particularly that of
the PLC. In this sense, the intended cosmetic change has to bear more
political significance and substance. These are the mines pre-set and
waiting for the advance of the Basic Law.
Secondly, the new constitutional order needs to be constructed on
the basis of the Basic Law. The two primary purposes of the Basic Law are
to maintain in Hong Kong a separate system different from that practised in
the Mainland and to provide a high degree of autonomy for Hong Kong 10.
These two purposes (functions) provide the Basic Law with a functional
and justiciable (capable of being challenged and enforced judicially) sta-^
tute. The establishment of the new constitutional order requires more
meaningful work than a simple change of cloak. To certain extent, the
change is a sort of re-institutionalisation on a limited scale. The purpose
of re-institutionalisation consists of works of locating the position of the
Basic Law in the Chinese legal hierarchy, connecting the Hong Kong
common law system with the statutory/civil law system of the Mainland
through the Basic law, and establishing channels of legal interaction and
dispute resolution mechanisms, etc. It is apparent that quite a few people
realised the complexity and difficulty of such work, due to that both
the Chinese and British governments and of Hong Kong people were
preoccupied mainly with the idea of prevention of changes. The lack of
attention and institutional preparation for such necessary moves, in addition
being fuelled by the political controversies, has caused some constitutional
"crises". They include, to mention a few, the authority to interpret the
Basic Law, the position of the Bill of Right Ordinance (it was enacted
in June 1991 by the British Hong Kong Government and posited above
all other ordinances) under the new legal framework, the legal status of
the Xinhua News Agency (an official body of the Chinese Government
stationed in Hong Kong which is not mentioned in the Basic Law), the
relation between the Basic Law and the Chinese Constitution, and the
jurisdiction of the courts of Hong Kong SAR over national laws enacted
by the NPC and its Standing Committee. The pratical readiness to embrace
changes is evident among many people, including the legal profession,
although many of them had not realised the delicacy and subtlety of
such changes. For instance, the CFA, in delivering the most controversial
judgement on the right of abode, averts that the British Parliament had
10 YASH Ghai, op. cit., p. 139,