Hong Kong Legal History and the Path to the Basic Law

Introduction

• Hong Kong is presented as a unique jurisdiction under the framework of “one country, two systems.”

• The Hong Kong Special Administrative Region (HK SAR) has existed for over $25$ years.

• There is no single precise definition of a legal system; it can be described as a body of rules/principles, processes, institutions, and personnel.

• To understand the future, we must first look to the past and trace the historical development of the HK legal system.

Learning Aims

• Examine the lead-up to the birth of the HK SAR by tracing the historical development of the Hong Kong legal system.

• Place the Hong Kong legal system into perspective.

• Outline the structure of the course.

Upon Colonialisation (Foundations of HK Law)

• In $1841$, Hong Kong was a fishing port with a few thousand inhabitants under the Qing Dynasty.

• Trade restrictions were in effect: maritime trade only; there was a trade imbalance.

• The opium trade was a key consequence of imperial commerce: Britain exchanged tea and silk for opium.

• Opium trade growth: from $1{,}000$ chests in $1767$ to $16{,}800$ chests in $1830$.

Treaty of Nanking (1842) – Foundations of Territory and Governance

• The Treaty of Nanking in $1842$ forced China to open five ports to British trade, require indemnity, and cede Hong Kong Island to Britain.

• British traders and the Superintendent of Trade Captain Charles Elliot moved to Hong Kong’s quiet harbour.

• Outcome: Britain gained Hong Kong Island and greater leverage over trade and governance.

Treaty of Nanking – Article III (Key Text in Context)

• Article III states that British subjects should have a port to maintain and refit ships and keep stores.

• China cedes the Island of Hong-Kong to Her Britannic Majesty, to be possessed in perpetuity, and to be governed by laws/regulations directed by Her Majesty.

• This establishes the legal basis for British governance over Hong Kong in the early colonial period.

Convention of Peking (1860) – Kowloon and Stonecutters Island

• Hostilities against China continued; China was forced to cede Kowloon and Stonecutters Island.

• This expanded British control beyond Hong Kong Island.

Convention of Peking (1860) – Article VI

• To maintain law and order in Hong Kong harbour, China agrees to cede to Britain, and to Her Heirs and Successors, the portion of Kowloon with a perpetual lease arrangement for Harry Smith Parkes (on behalf of the British Government).

Second Convention of Peking (1898) – The New Territories Lease(ing)

• Expansion of British territory into the New Territories via a lease.

• The lease term was set to $99$ years, and within the leased territory, Great Britain would have sole jurisdiction.

• The boundary and surveys would be fixed later by officials from the two governments.

1997 Deadline: The New Territories Order in Council (1898)

• The British government issued an Order in Council declaring the New Territories and Kowloon as integrated into Hong Kong.

• The territories would be part and parcel of Her Majesty's Colony of Hongkong for all intents and purposes as if originally part of the Colony.

1997 Deadline – Political Context and Realpolitik

• The entire Hong Kong territory needed to be treated as a whole when the time came for transfer.

• The Kuomintang and Communist governments did not recognize these treaties, viewing them as “unequal treaties.”

• There was a desire to avoid disturbing the status quo while Beijing’s interest in reunification with Taiwan grew in the late $1970s$.

• The Nine-Point Plan aimed to ensure HK’s autonomy while integrating with China under a broader framework.

Law in Colonial Hong Kong (Foundations of Legal System under British Rule)

• 1841 Proclamations: Local Chinese governed by the laws and customs of China; British subjects/foreigners by the principles and practice of British law.

• Letters Patent (1843) and the Governor’s powers: The Governor, with the Legislative Council, could make and enact laws for peace, order, and good government; this laid the groundwork for statutory law in HK.

• The Governor acted with the advice and consent of the Legislative Council; supplemented by Royal Instructions.

Supreme Court Ordinances – English Law in Hong Kong

• Supreme Court Ordinance (No. 15 of 1844): The Law of England was in full force in Hong Kong, except where inapplicable to local circumstances.

• Supreme Court Ordinance (No. 3 of 1873) s. 5: English laws in force at the time the colony obtained a local legislature (i.e., on $5 ext{th} ext{ April } 1843$) remained in force, except where inapplicable or modified by local laws.

• This established the principle of the English legal system being retained (with local adaptations).

Application of English Law (Legal Continuity)

• English law continued to apply via specific ordinances; the legal framework was modelled on English statutes.

• The law in HK thus reflected a hybrid: imported English law with local modifications.

Law in Colonial Hong Kong (Continued)

• The Application of English Law Ordinance (1966) § 4(1): The law of England, as set out in the Acts listed, was in force in HK, subject to:

  • (a) applicability to HK circumstances;

  • (b) any required modifications;

  • (c) amendments by Orders in Council, Acts applying to HK, or local Ordinances.

• This formalized the cross-border adaptation of English common law and equity in HK.

• Conclusion: HK’s legislation in the colonial period was heavily modelled on English statutes and common law, with local modifications.

Autonomy and Governance under Colonial Rule

• The Japanese occupation disrupted colonial governance and highlighted limits to external control.

• Post-WWII decolonization policy affected HK differently; autonomy was pursued but within a colonial framework.

• Stereotypes of the Governor as an autocrat were challenged; there were pragmatic reforms.

• 1958: Period marked by “independence in economic affairs,” signaling a shift toward economic self-sufficiency and policy autonomy.

• Lord MacLehose’s New Deal (late 1960s–1970s) emphasized modernization and political reform, contributing to HK’s path toward eventual autonomy under a different framework.

Sino-British Joint Declaration (1984) – The Blueprint for HK after 1997

• As 1997 approached, there was concern from the business community about land leases and the smooth handover.

• Beijing recognized a pragmatic leadership under Deng Xiaoping, and China agreed to deal with HK first under a framework that would preserve economic and social stability.

• The “one country, two systems” formula was to be applied to HK first, guiding the transition.

• The Joint Declaration laid down the blueprint for HK as a Special Administrative Region (SAR) after 1997.

• Paragraph 3: HK would enjoy a high degree of autonomy (except for defense and foreign affairs), vested executive, legislative, and independent judicial powers; laws in force would largely remain unchanged; the social and economic systems would remain intact; rights and freedoms preserved; HK responsible for public order; the arrangement would remain effectively unchanged for 50 years.

Sino-British Joint Declaration – Ratification and Legalization

• The Joint Declaration was formally ratified on $27 ext{ May } 1985$.

• Paragraph 1: China decided to resume sovereignty over HK with effect from $1 ext{ July } 1997$.

• Paragraph 2: Britain would restore HK to the People's Republic of China.

• Paragraph 3(12): The basic policies regarding HK would be stipulated in the Basic Law, by the National People's Congress (NPC), and would remain unchanged for $50$ years; Annex I elaborates these policies.

• It is an international treaty setting the stage for constitutional arrangement and long-term guarantees.

Drafting the Basic Law (Transitional Constitutional Framework)

• The Basic Law Drafting Committee was established by China’s National People’s Congress.

• HK representation: 23 of 59 members came from Hong Kong; Basic Law Consultative Committee comprised 180 HK members; no formal law-making role for the Consultative Committee during drafting.

• Provisional Legislative Council (pre-1997) participated in preparatory work.

Adoption of the Basic Law (1990) and the Birth of the HK SAR

• The Hong Kong Basic Law was adopted as national law by the NPC on $4 ext{ April } 1990$.

• HK Special Administrative Region was established and would come into being on $1 ext{ July } 1997$ .

• This marked the legal foundation for the post-1997 framework within which HK would operate as an SAR under Chinese sovereignty.

Conclusion

• Timeframe: From $1841$ to $1997$, HK’s legal system evolved from a dual-legal framework to a more integrated arrangement under the framework established by the Joint Declaration and the Basic Law.

• Core themes:

  • Importation and adaptation of English law, creating a mixed legal system.

  • The Sino-British Joint Declaration provided the overarching framework for “one country, two systems.”

  • The Basic Law codified autonomy, continuity, and rights protections for HK for a 50-year horizon post-1997.

• The course will continue with governance in Hong Kong post-1997, building on the legal foundations outlined above.

Key Dates and Provisions (Reference Quick Guide)

• $1841$: Colonial foundation in HK as a fishing port under Qing.

• $1842$: Treaty of Nanking establishes HK Island cession and early governance.

• $1860$: Convention of Peking expands territory to Kowloon and Stonecutters Island (Article VI).

• $1898$: Second Convention of Peking – New Territories leased for $99$ years; sole jurisdiction for Britain within leased area.

• $1898$: New Territories Order in Council integrates New Territories and Kowloon into HK Colony (as part of HK, for all intents and purposes).

• $1970s$: Nine-point plan and reforms guiding HK autonomy inside a PRC framework.

• $1984$: Sino-British Joint Declaration; 12-point plan; HK to retain existing legal system; high degree of autonomy; 50-year continuity principle.

• $27 ext{ May } 1985$ : Joint Declaration formally ratified.

• $1 ext{ July } 1997$: Transfer of sovereignty to PRC; HK becomes SAR.

• $4 ext{ April } 1990$: Basic Law adopted by NPC; framework for post-1997 governance.

• $50$ years: Duration of the autonomy protections under the Joint Declaration/Basic Law (until 2047).