During the hundred and twenty years that have passed since the cession of Hong Kong to the British Crown, the traditional Chinese law has regulated the domestic affairs of many of the Colony’s inhabitants, and even today, surviving its decease in its own country, enjoys a vigorous old age under foreign protection.

Putting aside any academic considerations, it might have been expected that the practical needs of administration would have long ago brought into being some authoritative statement by the Hong Kong Government at least of the relevant topics of family law.

It would be easy, but unfair, to make comparisons with some neighbouring territories. True, the Japanese Government, on acquiring Formosa by the Treaty of Shimonoseki in 1895, carried out a remarkably detailed investigation of Chinese private law, but it could dispose of the services of a considerable number of scholars not merely trained in law but with a depth of Chinese erudition no European can be expected to match. Then again, the French, who did so much to illuminate the closely-related law of Vietnam, had to deal with a country possessing its own legal code and system of government, although both were strictly modelled on Chinese originals. Yet when every allowance is made, it must remain a matter of surprise and regret that the study of Chinese law has been so much neglected in Hong Kong, a place which seems eminently suited for its cultivation.

Of late years, however, there are signs that the subject is arousing more interest than in the past. Two official reports have been published, and English lawyers with experience of the Hong Kong courts have discussed various points of importance.¹ In these circumstances, it is hoped that it will not be considered an impertinence if one whose only acquaintance with Hong Kong has been as a passenger in transit, but who has lived in China and tried to become familiar with the literature of Chinese law, ventures to offer an opinion on what appears to him to be the most fundamental aspect of the question.

This is brought into the open, with great lucidity, by Mr E. S. Haydon on the first page of his article ‘The Choice of Chinese Customary Law in Hong Kong’. He writes:

‘A considerable proportion of the three-million-odd Chinese, who form the bulk of the population of modem Hong Kong, are now domiciled in that Colony. Their domestic affairs under the rule of Private International Law are generally accepted as governed by Chinese customary law. But the Chinese customary law, which the courts attempt to apply in such cases, is that which obtained in the Kwangtung Province of China, on the border of which Hong Kong lies, on April 5,1843. At that time Hong Kong was inhabited by about five thousand Chinese who appear to have been employed in agri­culture and fishing and intermittently in piracy and other lawless pursuits.... Prima facie it is remarkable that many of the Chinese in Hong Kong at the present day, who comprise some of the most cultured people to be found in the Far East, should be at law subject in their domestic affairs, matters which are all important in Chinese eyes, to theoretical concepts of the customs of a riff-raff living in this same region of Kwangtung Province a hundred and twenty years ago. On that ground alone it is submitted that the basis for the choice of Chinese customary law in Hong Kong calls for reconsideration.’²

Mr D. E. Greenfield, in his article ‘Marriage by Chinese Law and Custom in Hong Kong’, goes further. He says:

‘Hong Kong Island was in that part of Imperial China known as the Province of Kwangtung. Although the Emperor’s decrees had nominal authority throughout all China it seems historically certain

* Chinese Law and Custom in Hong Kong, Government Printer, Hong Kong, 1953 (hereinafter cited as ‘Report of 1953’); Chinese Marriages in Hong Kong, Government Printer, Hong Kong, i960 (hereinafter cited as ‘Report of i960’);

D. E. Greenfield, ‘Marriage by Chinese Law and Custom in Hong Kong’, International and Comparative Law Quarterly, July 1958, PP- 437~5*>

E.

² P. 231.

that his role was very limited in practice. He may have collected and farmed out taxes, appointed some officials, and occasionally enforced a specific order, but away from the immediate presence of the court the only effective law was unwritten and customary, locally upheld and enforced by the people.’¹

Now it seems to the present writer that both these views are decidedly misleading. The China described by Mr Greenfield, if one substitutes ‘central government* for ‘Emperor’, has it is true a general resemblance to the country of the warlords—say between 1916 and 1927—but surely not to the China even of the late nineteenth century, still less to that of Tao Kuang. Mr Haydon is perfectly justified in drawing our attention to the fact that the original inhabitants of Hong Kong were, by and large, a pretty rough lot, but a Chinese, on the other hand, might be tempted to retort that the British on the China coast in those times could hardly be described as a group of first com­municants. All in all, it is probably a case of the pot and the kettle. And if the Chinese at present domiciled in Hong Kong are subject in their domestic affairs, as Mr Haydon says, ‘to theoretical con­cepts of the customs of a riff-raff’, then their situation is indeed to be deplored. What these unfortunate people are supposed to be subject to is traditional Chinese law, the principles of which are tolerably well known, and which, outside China, is taught at the University of Tokyo and at the School of Oriental and African Studies in the University of London. In the remainder of this essay it is proposed to discuss some features of that law which pose a problem for the Hong Kong courts today, and to illustrate die subject by reference to a particular Hong Kong legal institution.