LLAW6259 Chap.1 The Common Law System and the Laws of Hong Kong
The Common Law System and the Laws of Hong Kong
The phrase carries three different oppositions
The course opens the common law under three headings, and they are not three ways of saying the same thing. Common law against civil law contrasts two kinds of whole legal system, one in which decided cases are a source of law and one built around a code.
Common law against equity contrasts two bodies of principle that developed in different courts and that still behave differently today, chiefly because damages are available as of right once a cause of action is made out while an injunction or specific performance is discretionary. Common law against legislation contrasts judge made law with what the Legislative Council enacts.
A sentence using the phrase is ambiguous until you know which opposition the writer had in mind, and reading it under the wrong one is how a student contradicts an authority they have quoted accurately.
Four preserved sources, and the instrument that validates them
Article 8 of the Basic Law maintains the laws previously in force, naming them: the common law, rules of equity, ordinances, subordinate legislation and customary law, except for any that contravene the Basic Law and subject to amendment by the legislature.
Article 18 then states what the law in force is, adding the Basic Law itself and the laws enacted by the legislature of the Region, and providing that national laws shall not be applied here except for those listed in Annex III.
Article 2 authorises the Region to exercise a high degree of autonomy including the power of final adjudication, and Article 84 permits the courts to refer to precedents of other common law jurisdictions. Those four articles are the order in which a validity argument runs.
The date that decides what English material is here at all
Preserving the laws previously in force throws the question back a step.
The answer turns on the formula in the Supreme Court Ordinance 1873 as amended by the Application of English Law Ordinance 1966: such of the laws of England as existed when the Colony obtained a local legislature, that is to say on 5 April 1843, except so far as inapplicable to local circumstances or to the inhabitants and except so far as modified by local legislation.
The laws of England for this purpose covers both English legislation and English case law.
English decisions and English statutes after that date therefore never came across as law here, whatever their quality, and a Hong Kong judge has described the pre-1997 position precisely: judges were required to apply English law, but a modified form of it suited to local circumstances, and this gave them no discretionary power to legislate by modifying the common law.
Three conditions on anything inherited
A rule from before the handover survives only if three things hold together.
It must have been in force in Hong Kong on 30 June 1997. It must not contravene the Basic Law. And it must not have been amended by legislation of the Region. The third is the one researchers forget, because a rule can be perfectly constitutional and perfectly historical and still have been replaced last year.
Customary law is the narrowest of the four preserved sources and the one most often overstated: what the course actually identifies is section 13 of the New Territories Ordinance in relation to New Territories land, and the Legitimacy Ordinance in relation to legitimacy questions.
What this chapter covers
- 01
Why the phrase common law carries three different oppositions
- 02
Why the equity distinction survives after the courts merged
- 03
The two jobs case law does, and why they age differently
- 04
Articles 2, 8, 18 and 84, and the order they apply in
- 05
National laws, Annex III, and the limits on what may be listed
- 06
The 1843 formula, and the exception for local circumstances
- 07
Three cumulative conditions on any inherited rule
- 08
How narrow customary law actually is
Decide which authorities are law in Hong Kong at all
- 2Place the Hong Kong decision, naming the articles that preserve and constitute the law in force.
- 2Place the 1974 English decision against the 1843 cut-off.
- 2Place the 1838 English statute, and say what must be checked before relying on it.
- 2Place the Privy Council decision on a New Zealand appeal.
Key terms
- Basic Law
- The constitutional instrument of the Hong Kong Special Administrative Region. It validates the other sources of law rather than sitting alongside them as one of them.
- Annex III
- The list of national laws that may be applied in the Region, confined by Article 18 to defence, foreign affairs and other matters outside the limits of the Region's autonomy.
- Equity
- A body of principle developed separately from the common law, with its own remedies. Those remedies are discretionary, which is why a claimant's own conduct can defeat them without defeating a claim in damages.
- Customary Law
- Chinese custom applied in Hong Kong through specific statutory contexts, principally New Territories land and legitimacy questions. It is not a general source to reach for.
- Laws Previously In Force
- The four bodies of law Article 8 maintains, being the common law, rules of equity, ordinances, subordinate legislation and customary law.
- Final Adjudication
- The power to decide appeals conclusively, which Article 2 confirms the Region exercises and which is why appeals no longer leave Hong Kong.
- Application Of English Law Ordinance
- The 1966 Ordinance that lists which pre-1843 English legislation applies here, which is why an old English statute must be checked against a list rather than assumed.
The Common Law System and the Laws of Hong Kong FAQ
Does English law still apply in Hong Kong?
Only in a narrow and dated sense. English legislation and case law came across as law here only as it stood before 5 April 1843, and only so far as applicable to local circumstances and not modified by local legislation, with pre-1843 English statutes reaching us through a list in the Application of English Law Ordinance 1966. Everything English after that date is not law here at all.
It can still be used, because Article 84 permits the courts to refer to precedents of other common law jurisdictions, but referring is not following.
How does a common law remedy differ from an equitable one?
Availability. A common law remedy, principally damages, is available as of right once the cause of action is established. An equitable remedy such as an injunction or specific performance is discretionary, so the court weighs the claimant's own conduct and other circumstances before granting it.
There is no separate court of equity here and the same judge applies both, which is why students assume the distinction has gone; the difference in how the two kinds of remedy behave is what keeps it alive.
Do national laws of the People's Republic of China apply in Hong Kong?
Only those listed in Annex III to the Basic Law, and Article 18 confines that list to laws relating to defence and foreign affairs and other matters outside the limits of the Region's autonomy. Those listed are applied locally by way of promulgation or legislation.
So the answer to a party who says a national commercial law governs a Hong Kong dispute is to ask them to point to Annex III, rather than to argue about sovereignty.
Assessment move
Draw the four preserved sources from memory with the Basic Law drawn outside them, then write one authority you know onto the map. If you cannot place it, you do not yet know whether you may cite it, and that is the question this chapter exists to make automatic.
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