The Sources of Hong Kong Law

354 Pages·1994·14.747 MB·English

by  Peter Wesley

The
Sources
of
Hong Kong
La~
Peter "Wesley-SD1ith
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Hong Kong University Press
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Hong Kong University Press
139 Pokfulam Road, Hong Kong
© Hong Kong University Press, 1994
First published 1994
Reprinted 1996
ISBN 962 209 363 9
All rights reserved. No portion of this
publication may be reproduced or transmit
ted in any form or by any means, electronic
or mechanical, including photocopy,
recording, or any information storage or
retrieval system, without permission in
writing from the publisher.
Printed in Hong Kong by Condor Production Ltd.
Contents
Preface vii
Table of cases IX
Table of legislation XXXVll
Part One: The Common Law
Understanding the common law 3
2 Theories of adjudication 21
3 The theory of stare decisis 31
4 The practice of horizontal stare decisis 65
5 Vertical stare decisis within Hong Kong 81
Part Two: The Reception of English Law 85
6 Statutory provisions importing English law 87
7 Statute law 103
8 The effect of pre-1843 Acts of Parliament 115
9 Common law and equity 131
vi Contents
10 Practice and procedure 143
11 Vertical stare decisis 181
Part Three: Chinese Law and Custom 203
12 Chinese law and custom as a source of law 205
Part Four: Aspects of Statutory Interpretation 225
13 Ejusdem generis and the disjunctive 227
14 Literal or liberal? 237
15 Resort to Hansard 249
16 Offences of strict liability 255
17 Mandatory or directory? 273
18 Retroactive and retrospective ordinances 289
Index 303
Preface
The 'sources' of law can be formal, historical, literary, or legal, the last-named
being the means by which the law is created or changed (or perhaps merely differ
ently perceived). This book is principally about the various legal sources of the law
- old and new, written and 'unwritten', home-grown and imported - to which
Hong Kong citizens owe their allegiance. How does law come into being? Where
does it come from? How do we recognize it? These questions have an almost
metaphysical dimension, but they also raise severely practical issues of consider
able importance to the legal system. The answers depend on both theory and practice,
and as such they are neither simple nor static: they must frequently be rethought
and re-invented. And they are fundamental, particularly in a society undergoing
rapid change. Hong Kong is currently in transit from colony to Special Administra
tive Region, from British to Chinese sovereignty, from predominantly English to
primarily local law. The journey involves challenges to law's authority and thus to
the assumptions we make about the law and to the way we analyse it. This book is
conceived as a contribution to the rethinking and re-invention which we must
undertake if the process of constitutional development is to be orderly and
unproblematic.
Most of the essays appearing here have been previously published. They were
not originally conceived as items in a collection, yet they fit together as a reason
ably comprehensive treatment of the sources of Hong Kong law. I have supplemented
and revised them, bringing them up to date, eliminating some repetition and occa
sional inconsistency, and providing cross-references. It is thus hoped that the book
forms a convenient source of material for everyone interested in the theory of Hong
Kong's legal system as it prepares for an uncertain future.
Chapter 1 was published in Raymond Wacks (ed), The Future of the Law in
Hong Kong (Hong Kong: Oxford University Press, 1989), pp 15-36. Chapter 2 is
largely extracted from 'Theories of Adjudication and the Status of Stare Decisis' in
Laurence Goldstein (ed), Precedent in Law (Oxford: Clarendon Press, 1987), pp
73-87, though it has been considerably supplemented, and the same source pro
vides material for the second part of Chapter 3 and a small portion of the first part.
viii Preface
The third part, on the per incuriam doctrine, originally appeared in (1980) 15
Journal of the Society of Public Teachers of Law (New Series) 58-64. Chapters 4
and 5 draw on various notes in the Hong Kong Law Journal. Chapters 6, 7, and 9
come from 'The Reception of English Law in Hong Kong' (1988) 18 HKLJ 183-
217 and Chapter 8's first appearance, to the chagrin of generations of law students,
was at (1984) 14 HKLJ 142-58. Chapter 10 is a re-ordered version of the essay at
(1979) 9 HKLJ 255-91. Contributions to (1979) 9 HKLJ 327-32 and (1986) Mal
LR 50-62 together make up Chapter 11. The following chapter, on Chinese law
and custom, is a heavily reworked paper presented to a conference on folk law and
legal pluralism in 1990 and available in the conference proceedings. Chapters 13,
14, and 16 respectively appeared in (1975) 5 HKLJ 336-42, (1982) 12 HKLJ 203-
10, and (1994) 24 HKLJ 40-55. Most of the first part of Chapter 3, and Chapters
15, 17, and 18, are new. Permission to republish material from the books and
journals mentioned is gratefully acknowledged.
The author's proceeds from this book will go to the cause of justice for the
people of East Timor.
PETER WESLEY-SMITH
The University of Hong Kong
July 1994
Table of Cases
A & BC Chewing Gum Pty Ltd (1975), 167
A/S Cathrineho1m v Norequipment Trading Ltd (1972), 69
Abbott v R (1976-7),14, 186, 191, 197, 198
Abidin Daver, The (1984),14
Abse v Smith (1986), 162, 175
Acada Development Co Ltd v Gold Way Trading (1989),184
Ackerman v R (1981), 71
Adams v Carr (1987), 238
Advocate-General Bengal v Ranee Surnomoye Dossee (1863),89
AG Hong Kong v Reid (1993),182,183,192
AG New Zealand v Ortiz (1982), 239
AG Ontario v Canada Temperance Federation (1946), 65
AG St Christopher v Reynolds (1979), 68, 194-5
AG UK v South China Morning Post Ltd (1988),137,193
AG v Alick Au Shui-yuen (1991), 58, 70
AG v Chan Chit-yin (1971), 230
AG v Ch an Chiu-hung (1980), 240
AG v Chan Kei-lung (1977), 251
AG v Chan Wai-lan (1981), 76
AG v China Light & Power Co Ltd (1982), 243
AG v Chiu Man-Iun (1989), 232, 235
AG v Chuin Yu Yin-hsu (1963), 150
AG v David Chiu Tat-cheong (1992), 300
AG v Demand Enterprises Ltd (1986-7), 77, 259, 260, 264
AG v Deputy District Court Judge (i 991),99, 148
AG v Electric Traction Co (1911-12), 233, 243
AG v Gammon Hong Kong Ltd (1983), 267
AG v Gardiner (1987), 78
AG v Harbour Engineering Co Ltd (1986), 234, 243
x Table of Cases
AG v Hui Lan-tai (1991), 276, 278, 279, 280, 286
AG v Ikeda International (HK) Ltd (1986), 243
AG v Jacqualine Hamilton (1987), 278
AG v Jim Chong-shing (1990),157,178
AG v John Lok (1986), 238
AG v Johnny Yau Kwok-Iam (1988), 244
AG v Ko Che-Iung (1972), 243
AG v Kwok A-sing (1873), 73, 94
AG v Lau Chiu-tak (1984), 57, 69, 71
AG v Lau Shek-man (1987), 279
AG v Lau Shui (1985), 240
AG v Lee Chi-keung (1984), 83
AG v Lee Kwong-kut (1992),269,270
AG v Leveller Magazine Ltd (1978), 175
AG v Li Siu-Iam (1989), 70, 197
AG v Liu Ching-sum (1986), 238, 259
AG v Lo Chi-kiu (1989), 278
AG v Lui Fuk-yuen (1976), 228
AG v Lui Lok (1984), III
AG v Ma Pak-chi (1964), 234-5
AG v Man Chi-kin (1964), 227, 229
AG v Mulholland (1963),162
AG v News Group Plc (1988),15
AG v Ng Chung-hing (1990-1), 78, 257, 259
AG v Ng Kwan (1986), 232
AG v Ph am Si Dung (1993), 251
AG v Reynolds (1980), 42, 45, 52
AG v Sham Chuen (1986), 58, 73
AG v Shun Shing Construction Co (1986),23,256,259,260,264
AGvSillem(l864),173
AG v Stewart (1817), 108, 109
AG v Tai Lin Radio Services Ltd (1991), 278
AG v Technic Construction Co Ltd (1986), 189
AG v Tsang Kwok-kuen (1971), 227
AG v Tsui Kwok-leung (1991), 60,195,197
AG v Windsor (1860), 50
AG v Wing On Bank Ltd (1984), 281
AG v Wong Chi-ming (1988), 243
AG v Wong Kwai-sun (1980), 67, 68, 76
AG v Wong Lau (1992), 278
AG v Yeung Hip-yung (1976),185
AG v Yip Man-cheong (1989), 259, 260, 264, 265
Aik Sang Realty Ltd v AG (1982), 238
Alexander Adamovich, Re (1983), 245
Alice Yan Tong-kan v Gammon (HK) Ltd (1981),189,241
Alick Au Shui-yuen, Re (1991), 238