D'Aguilar

When justice was a matter of fowl play

PUBLISHED : Saturday, 16 January, 1999, 12:00am
UPDATED : Saturday, 16 January, 1999, 12:00am

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The clerk of the court addresses the witness: 'Mr Luk, may I ask you to put your right hand on this chicken and repeat after me. I swear on this deceased poultry . . .' Ah, the good old days of the Hong Kong courts.


Our fowl-free judiciary today has a good reputation for fairness. Yet many people are uncomfortable about some of the legal decisions made since the handover.


The historian cannot help but be reminded of the early days of the law in this city. The first two buildings constructed in Hong Kong were the magistracy and the prison, according to the historian James Norton-Kyshe.


And one of the first big debates in Hong Kong was how to teach citizens to take the law seriously, with the introduction of oaths sworn over dead chickens.


On February 2, 1841, Captain Charles Elliot was on his boat, the Wellesley, anchored in Hong Kong Bay.


He was obsessed with 'fair play', and wrote a decree introducing a legal system based on English and Chinese principles.


He added a proclamation stressing that Chinese citizens with complaints 'against any Englishman or foreigner' should 'quickly make report to the nearest officer to the end that full justice may be done'.


Having constructed a legal basis for the new colony, he needed a judiciary. There were no suitable lawyers about, let alone judges. So he roped in a sailor, Captain William Caine, to do the job of Chief Magistrate, starting in April.


The magistracy and the prison were soon built, and shortly afterwards, a couple of dozen police were on patrol.


Crime was rife. So Caine made a proclamation, asking his interpreter to translate it into Chinese of a suitable tone. The man wrote: 'Hereafter all Chinese, besides the usual watchmen, are forbidden to walk the streets after 11 o'clock at night . . . Let each tremblingly obey.' The Europeans agreed it had a grand resonance lacking in British legal parlance.


In June 1843, 44 people were declared Justices of the Peace. 'None of them [were] the slightest use,' according to Norton-Kyshe.


The judiciary grossly outnumbered the police, of whom there were 28 at that time. The Chinese population hired watchmen to patrol at night clutching a bamboo 'time signal' device. The clack-clack of bamboo pieces struck together meant 'all's well'.


The courts ran pretty well, but the government of Hong Kong was accused of using them to favour friends.


There was an outcry in August 1844, when a decree was issued saying Chinese watchmen 'will no longer be permitted to strike their bamboos at night'. The secret hand behind this was Major-General Charles D'Aguilar, who liked to go to bed early and could not abide any sort of noise or activity after dark.


The clacking of bamboo disturbed his rest.


Crime remained high. A letter appeared in the local paper, advising residents who had not yet been robbed 'but who would soon be' to 'nail their boxes to the floor, lock them, and sleep with a good pair of loaded pistols under their pillows'.


Among those robbed in those early years were the governor, the chief magistrate and his assistant.


When sewers and toilets were installed, robbers used them to break into Europeans' houses.


On another night, D'Aguilar had gone to bed early when he heard singing.


Shocked, he sent an officer to find out who was responsible, and the man found a party in progress at the house of a European resident named Welch.


D'Aguilar complained to the courts, who obediently summoned Welch and fined him US$20 for 'having singing in his house between the hours of 10 and 11 o'clock', something not seen as a crime in most countries.


Meanwhile, the Chinese citizens of Hong Kong had noted the decree specified that bamboo time signals were banned, and gave their nightwatchmen rattles, gongs and bells instead.


In 1845, the courts of Hong Kong won a great deal of respect when they hanged a Caucasian convict, Charles Ingwood, alongside a Chinese armed robber, Chun Afoon. The rule of law really did seem to apply to everyone.


But D'Aguilar continued to bring cases against people who disturbed him, one against a horse-rider who 'rode furiously' too near him. The charge of 'driving furiously' remains on our statute books today, although these days it is applied to motorists rather than horses.


One of the main problems of the courts in the early days was to find an oath for Chinese witnesses. The Romans had a system where a man mounting the dock would flash his testicles, since the only qualification needed to speak in court was to be male. Words such as 'testify' are derived from 'testicle'.


There was talk of adopting the triad system, where you blew out a flame, to show you were willing to have your life snuffed out if you did not follow the rules.


Three systems were finally adopted in Hong Kong.


1. You smashed a saucer to express the thought: May my rice bowl be smashed if I tell a lie.


2. You signed a pledge to tell the truth and then the paper was burned in court, so that it went up into the hands of your personal god.


3. You took a cock or other fowl to court and swore an oath after ceremonially cutting off its head.


This last method, though messy and undignified - decapitated chickens tend to run around for several minutes before dying - was adopted for many years.


This was probably something to do with the fact that the carcasses of the fowls would be given to the judiciary, who would eat them.


The Hong Kong court system developed a fine reputation, although some recent decisions have revived the ghost of Major-General D'Aguilar, who expected the courts to do favours for the powerful.


But if the ghost of D'Aguilar has returned, he will be deeply shocked to find that Allan Zeman and other entrepreneurs have turned D'Aguilar Street into the noisiest, most active nightlife centre of Hong Kong.


Fortunately, ghosts cannot sue.