Judges attend the ceremonial opening of the legal year at City Hall in Central on January 13, 2020. Photo: Robert Ng
Henry Litton
Henry Litton

Hong Kong needs a common law with local characteristics

  • Hong Kong has retained the common law system of jurisprudence, wherein all the case law is expressed in English
  • A greater effort should be made to ensure that the legal system harmonises with the Basic Law and is compatible with the wider national interest
When Britain and China began formal negotiations over Hong Kong’s future in 1982, Hong Kong was an outright autocracy. The governor had plenipotentiary powers. He presided over the Legislative Council, with senior government officials serving as members, and the rest were the governor’s appointees.
The same held true in December 1984 when the joint declaration was signed, “settling” the future of Hong Kong. The joint declaration made no provisions for representative government of any kind. That was entirely a matter of China’s internal affairs.

Against this background, it can be seen that the Basic Law for the Hong Kong Special Administrative Region, promulgated six years later, was a highly liberal and enlightened instrument. It held out the prospect of universal suffrage for the legislature (Article 68) and for the selection of the chief executive for appointment (Article 45).

The Basic Law entrenched the common law as the bedrock of Hong Kong’s capitalist system and lifestyle (Article 8). Common law is a system derived from judgments of English judges of the 19th and 20th centuries, supplemented later by judgments of superior courts in other common law jurisdictions.

All this case law is expressed in English. Article 9 of the Basic Law made English an official language besides Chinese.

Article 5 of the Basic Law left open the duration of Hong Kong’s capitalist system and lifestyle, within the overarching principle of “one country, two systems”. That principle, it is now clear, will continue well beyond 2047, thus safeguarding Hong Kong’s leading position in the world as a financial and trade centre.


What does ‘one country, two systems’ mean?

What does ‘one country, two systems’ mean?

But there is one problem: there is no conceivable way that the vast bulk of cases constituting the common law could be translated into Chinese.

What does this mean for Hong Kong as the 25th anniversary of reunification approaches? I suggest enhanced sensitivity on the part of the judiciary and lawyers on this issue, and a greater effort to ensure that the legal system harmonises with the Basic Law and is compatible with the wider national interest.

This means, above all, that the legal process should be robust and straightforward, purged of obscure technicalities; that judgments be focused on real issues and not arcane theories; that such judgments be brief and centred on remedies; and above all that they be easily translated into Chinese.

Language can arouse strong emotions, on the part of those who feel handicapped and excluded by lack of familiarity with the language. The judiciary should not feel complacent in this regard.

Hong Kong’s independent judicial power is derived from the National Peoples’ Congress where the only language used is Chinese. It follows that, in the exercise of judicial power, transparency is crucial: transparency as viewed from Beijing.

The Court of Final Appeal in Hong Kong’s Central district. Photo: EPA-EFE

Judgments of the Court of Final Appeal have received plaudits from legal scholars overseas. This should not blind the legal community to the overarching requirement for transparency and the need to develop a common law with Hong Kong characteristics, one that works effectively to advance Hong Kong’s unique position as a special administrative region of China.

There is no doubt that China is destined to be the dominant economic power in the Indo-Pacific region for the rest of this century. Geographically, Hong Kong is superbly placed to play a full part in that development – to act as a link between East and West, as it has done for the past 180 years.

The practice of common law puts Hong Kong in a position which no other city in China can match. But such practice requires discipline, both on the part of lawyers and of the courts. The basic tenets of the common law transcend ethnicity and race.

This is amply demonstrated by the national security law, promulgated by Beijing, which became effective in Hong Kong on July 1, 2020. It is rich in human rights content – for example, the presumption of innocence – which any lawyer conversant with the common law would have immediately recognised.


First person convicted under Hong Kong’s national security law jailed for 9 years

First person convicted under Hong Kong’s national security law jailed for 9 years

In far too many instances, courts have followed counsel’s lead and, interpreting provisions in the Basic Law, have done so through the lens of European human rights jurisprudence.

This is fundamentally wrong. In setting up the Hong Kong Special Administrative Region, the National People’s Congress conferred power on the Hong Kong courts; it never authorised the Hong Kong courts to delegate power to the European Court of Human Rights.

As the community progresses towards 2047, the Hong Kong courts should stand tall, confident in the wisdom of the common law, rejecting all distractions. Only in this way might Hong Kong fulfil its true destiny.

Henry Litton is a former judge of the Hong Kong Court of Final Appeal