“One Country, Two Systems” of Legal Research: A Brief Guide to Finding the Law of China’s Hong Kong Special Administrative Region
By Sergio Stone & Roy L. Sturgeon
Sergio Stone is the Foreign, Comparative and International Law (FCIL) Librarian at Stanford Law School’s Robert Crown Law Library in California. He received his MLIS from the University of Denver and JD from New York University. He worked previously as the FCIL Librarian at the University of Denver Sturm College of Law’s Westminster Law Library. In addition, he chairs the Asia Law Interest Group of the American Association of Law Libraries.
Roy L. Sturgeon is the Foreign and International Law Librarian, Library Liaison to the Public Advocacy Center, and an Adjunct Professor at Touro College Jacob D. Fuchsberg Law Center’s Gould Law Library in New York. He received his JD from Valparaiso University, MLS from St. John’s University, and LLM in Chinese Law from Tsinghua University in Beijing. Before becoming a law librarian, Roy worked as a secondary school teacher in America and China, a bookseller and field interviewer in Iowa, and a law clerk in South Carolina. He has published articles about American constitutional law, Chinese libraries and librarianship, and information ethics. He is writing an article on free speech in China, a book on Chinese legal history, and blogs for the Law Librarian Blog.
Published September 2008
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Table of Contents
2.1. Basic Law
2.2. Other Legislation
3.1. Aid Services
3.3. Book Publishers
3.10. Research Books & Guides
3.11. Scholarly Journals
The traveller in China sees many marvels. From Harbin in the bitter north to Urumqi among the deserts of Xinjiang, from the frontiers of the [former] Soviet Union to the marches of India, the way is marked everywhere by spectacle and anomaly. . . The most astonishing thing of all, though, lies at the southern edge of the Chinese land mass, just below the Tropic of Cancer, where the Zhu Jiang or Pearl River debouches through Guangdong Province into the South China Sea. . . a futuristic metropolis, like something from another age or another sensibility, stacked around a harbour jammed fantastically with ships – the busiest, the richest and the most truly extraordinary of all Chinese cities, identified in the new orthography as Xianggang. – Jan Morris, Hong Kong, Revised and updated edition (New York: Vintage, 1997): 15, 17.
Hong Kong (HK), or Xianggang in Mandarin Chinese, is a fascinating political creation. More than a city but less than a state, part of the People’s Republic of China (PRC) but not really of the PRC. It has only been so for the last 11 years. Before then, it was a British Crown Colony for 155 years. And before that, a remote and relatively unimportant part of the Chinese empire for over 2,000 years. Geographically, HK consists of three main parts: HK Island, Kowloon Peninsula, and the New Territories. A defeated Qing dynasty involuntarily leased HK Island “in perpetuity” to Britain after the First Opium War (1839-42). This transfer of property (and sovereignty), codified by the Treaty of Nanking, marked the start of what Chinese refer to as the “century of humiliation” by foreign powers through coerced, unequal treaties. Kowloon Peninsula was similarly leased to Britain in the Treaty of Peking after the Second Opium War (1860). And in 1898 the Kowloon Extension Agreement resulted in a 99-year lease of the New Territories to Britain. Except during the Japanese occupation (1941-45), Britain remained in control of HK until the last decade of the 20th century.
After World War II HK soon became one of the world’s most important and modern places. It formed part of the West’s Cold War-era “Bamboo Curtain” against Asian communism following the 1949 communist victory in mainland China’s civil war. In the 1960s it rose as a global manufacturing center for cheap textiles, plastic goods, and basic electronics. Then it emerged as an international financial center in the 1980s, eventually besting “mother” Britain in terms of economic prosperity and New York City in numbers of skyscrapers. And since July 1, 1997, HK’s seven million residents have been guinea pigs in a unique experiment: the first capitalist (quasi-) liberal society returned to an authoritarian (ostensibly) communist state. To get a feel for what HKers hoped and feared around the time of the “handover,” “reversion,” or “retrocession,” read Xu Xi’s The Unwalled City, watch Wong Kar-wai’s Chungking Express, and Wayne Wang’s Chinese Box, and listen to Tan Dun’s Symphony 1997. The driving force behind this watershed event was China’s late paramount leader Deng Xiaoping. In 1982 he told then-British Prime Minister Margaret Thatcher,
On the question of sovereignty, China has no room for manoeuvre. To be frank, the question is not open to discussion. The time is ripe for making it unequivocally clear that China will recover Hong Kong in 1997. That is to say, China will not only recover the New Territories but also Hong Kong Island and Kowloon. . . If China failed to recover Hong Kong in 1997 . . . no Chinese leaders or government would be able to justify themselves for that failure before the Chinese people . . . It would mean that the present Chinese government was just like the government of the late Qing Dynasty . . . [T]he people would no longer have reason to trust us, and any Chinese government would have no alternative but to step down and voluntarily leave the political stage. – Selected Works of Deng Xiaoping, Vol. 3 (1982-1992) (Beijing: Foreign Languages Press, 1994): 23.
A consummate pragmatist, Deng proposed the one country, two systems principle to ease the resumption of Chinese sovereignty whereby HK—because of its colonial past—would be a “special administrative region” and exercise a “high degree” of autonomy for at least 50 years after reunification with China. This meant that HK could keep, among other things, its capitalist economic system and common law legal system (with slight changes). How has this principle worked in practice so far? There has been controversy, most notably the Right of Abode case in 1999 and Article 23 protests in 2003. But overall it has worked better than many people predicted. Stay tuned, though. Serious disagreements over the pace of universal suffrage have yet to be resolved.
To research HK law effectively, one must understand that while there is only one country (China) there are two legal systems (civil and common) involved. And of these two systems, the common law is most important. There are many excellent online research guides on mainland Chinese law, which largely follows the civil law system. Also, Wei Luo at Washington University in St. Louis wrote an indispensable reference book in 2005. But these resources rarely discuss HK at length, if at all. Two respected looseleaf reference works, Reynolds and Flores’ Foreign Law (8 vols.) and Redden’s Modern Legal Systems Cyclopedia (22 vols.), cover HK. The print versions have not been updated since 2002 and 1993, respectively. The online version of Foreign Law may be more current, but requires a subscription. There does not appear to be an online version of Modern Legal Systems Cyclopedia. A couple of superb books published in HK focus on HK legal research. They are, however, either dated, hard to find in libraries outside HK, or both (see 3.10 below). As a remedy, we present this brief guide primarily for legal researchers outside HK. It focuses mostly on English-language information and free—but reliable—websites. We hope it helps them to better find the law of China’s HK Special Administrative Region (SAR) and appreciate HK’s unique role bridging East and West.
Primary law sources are the binding rules of law in a jurisdiction. Because HK has a common law legal system, its primary law sources include legislation (i.e., ordinances, regulations, etc.), and caselaw (i.e., judge-made law, court decisions). In addition, Chinese customary law (under certain circumstances, such as land inheritance matters) and international law (treaty and customary) are recognized as primary law sources. But neither will be discussed in this Brief Guide.
The most important piece of HK legislation is the Basic Law, which was drafted in the late 1980s and promulgated in 1990 before becoming effective on July 1, 1997. It is often called HK’s constitution, or mini-constitution. Besides a preamble proclaiming HK’s establishment as a SAR of the PRC, its nine chapters cover:
• General principles (Articles 1-11)
• Relationship between the central authorities in Beijing and HK (Arts. 12-23)
• Fundamental rights and duties of residents (Arts. 24-42)
• Political structure (Arts. 43-104)
• Economy (Arts. 105-135)
• Education, science, culture, sports, religion, labour, and social services (Arts. 136-149)
• External affairs (Arts. 150-157)
• Interpretation and amendment of the Basic Law (Arts. 158-159)
• Supplementary provisions (Art. 160)
And its three annexes cover:
• Method for the selection of HK’s Chief Executive
• Method for the formation of HK’s Legislative Council and its voting procedures
• National laws to be applied in HK
All other laws must accord with the Basic Law (see Art. 11).
Importantly, English as well as Chinese may be used officially by the executive, legislative, and judicial authorities (see Art. 9). It is unclear which Chinese dialect(s) (Cantonese, Mandarin, etc.) and character system(s) (traditional or simplified) are meant. Cantonese, or Guangdonghua, is widely spoken as are traditional characters widely used in HK. Mandarin, or Putonghua, is widely spoken as are simplified characters widely used in mainland China.
Hong Kong’s congress or parliament is called the Legislative Council (or LegCo). It enacts principal laws (called ordinances) signed by the Chief Executive and published weekly in the bilingual Government of the HKSAR Gazette (the Gazette has a main volume and seven other volumes, called Supplements. The Supplements are important legal sources. Ordinances are published in Supplement 1.) Sometimes LegCo delegates its lawmaking power to the executive authority, resulting in subsidiary laws (variously called by-laws, orders, regulations, and rules) that flesh out principal laws. (Subsidiary laws are published in Supplement 2 of the Gazette.) For more information about the legislative process, see LegCo’s website and the Department of Justice’s Legal System in HK website.
The Gazette has published (as Supplements) all HK legislation since 1844. Laws, however, change over time. The changed versions of laws can be found in the Laws of HK. Starting in 1890, editions were published only in English roughly once a decade until 1990. (Although not updated since 1990, it remains the main source for all laws not yet included in the new Laws of HK set below.) The current official bilingual compilation of HK legislation is also called Laws of HK and available in print and online. The online version is easier for finding up-to-date legislation, but it is not the official version. The print version is official and published as a looseleaf. It is updated somewhat regularly (every six months at best) and may lack the newest laws. The Gazette, therefore, should still be consulted for changes since those published in the latest looseleaf version of Laws of HK. For the text of 120 of the most important and frequently cited ordinances along with commentary, see the Annotated Ordinances of HK. “Annotations discuss the history of the legislation, explore all relevant case law (both domestic and overseas), reference related Ordinances and compare English counterpart Acts and similar legislation from other common law jurisdictions.” And for pre-World War II legislative history not in the Annotated Ordinances, see the HK Government Reports Online (1853-1941) full-text image database. In addition to the Gazette, it has three other major government publications: Administrative Reports, Hansard, and Sessional Papers. These have “a wide range of information, such as official notifications, proceedings of the Legislative Council, statistics, and reports of government department and special committees, which are essential to students and scholars in conducting research on HK.”
Caselaw is law developed by judges in legal proceedings. Hong Kong’s highest court (or “court of last resort”) is the Court of Final Appeal, called the Supreme Court before 1997 and the High Court briefly afterward. Lower courts include the High Court (Appeal and First Instance), District Court (including Family Court), and Magistrates’ Court as well as numerous specialized tribunals. For more on the structure of the courts, see the Judiciary’s website. Interestingly, judges and other judiciary members need not be from HK. They may be from other common law jurisdictions (see Basic Law, Art. 92).
There are two types of HK court decisions, opinions, or judgments: unreported and reported. Unreported judgments are similar to United States Supreme Court slip opinions. They are simply raw judgments lacking editorial enhancements like LexisNexis Headnotes and West Key Numbers. All judgments are initially unreported. If deemed important enough, then they may be reported (or published) later in a set of law reports. Be careful not to equate unreported judgments with unimportant judgments. Just as with United States court judgments, many months may pass before new judgments are reported. Reported judgments have important points of law, whether new, expansions of previous ones, or both. A case summary (or headnote) is included with the judgment’s text in a set of law reports. After a judgment is reported, all references to it must be to this version instead of the unreported version.
Hong Kong caselaw is readily available online, freely and commercially. The Judiciary’s Judgments and Legal Reference database has decisions from various courts. It is fully searchable, bilingual, and updated frequently. The HK Legal Information Institute (HKLII) also has caselaw (not to mention legislation and some secondary sources, too), is fully searchable, bilingual, and updated almost daily. And LexisNexis (United States) and Westlaw (law school) have caselaw as well as lots of other materials, though subscriptions are required. On LexisNexis, click on the “Legal” tab, then “Find Laws by Country or Region,” and “China & Hong Kong” to view what is available. See also LexisNexis HK for more product details. On Westlaw, tab “Westlaw International” and click on “Hong Kong” for quickest access. See also Westlaw HK (click on “Westlaw HK”) for more product details.
Perhaps less readily available to legal researchers outside HK is caselaw in print. General law reporters have judgments from courts at various levels (e.g., Court of Final Appeal, High Court, etc.) and on various areas (e.g., criminal, commercial, etc.). Hong Kong has two general law reporters: HK Law Reports & Digest (click on “Products” and type “Hong Kong law reports & digest” in search box) (HKLRD, 1997-present) and HK Cases (1946-present). The Government Printer published HK Law Reports, the predecessor to HKLRD, from 1905 to 1996. Specialist law reporters focus on a particular court or area. Many exist, such as the HK Family Law Reports (2005-present). Some have either merged with general law reporters or been discontinued. Courts in HK prefer that practitioners cite one of two authorized (or official) law reporters: HK Court of Final Appeal Reports (click on “Products” and type “Hong Kong court of final appeal” in search box) and HKLRD. These reporters are “authorized” because the court or judge has verified their contents before publication. A citation to an unauthorized (or unofficial) law reporter will suffice if a decision has not been published in an authorized law reporter. To learn a decision’s later treatment (if any), consult the HK Case Citator, which is currently available only in print. The Consolidated Index to All Reported HK Decisions completely indexes the HK Law Reports, HK Cases, and 25 other law reports worldwide in which HK decisions have been reported. It uses 84 subject headings similar to Halsbury's Laws of Hong Kong (see 3.5 below).
Secondary law sources are merely persuasive and not binding in a jurisdiction. Because HK has a common law legal system, its secondary law sources include everything except legislation (including the Basic Law), caselaw, Chinese customary law (under certain circumstances), and international law (treaty and customary). As mentioned above, all of these sources are primary and binding. Perhaps the most helpful and widely used secondary law source is expert commentary. It can be found in many places, particularly books, scholarly journals, and newspapers. Below are descriptions and links to such sources as well as related organizations (educational, informational, non-governmental, professional, etc.).
The HK government and other groups run clinics that provide legal services to residents unable to afford private counsel:
Hong Kong is an important regional center for alternative dispute resolution (ADR), including ADR involving parties from the PRC. The HK High Court (see 2.3 above) has a specialized procedure for engineering and construction cases called the Construction and Arbitration List. The two major non-profit organizations that handle domestic and international arbitration and mediation are the HK International Arbitration Centre (HKIAC) and the HK Institute of Mediation. Selected decisions of the HKIAC are available from the HKLII. See also the HK Institute of Arbitrators website.
The mega-law firms of Baker & McKenzie and Deacons have guides to ADR in HK:
LexisNexis HK (includes Butterworths Asia) and Sweet & Maxwell Asia (includes Westlaw HK) are the major publishers of primary and secondary law sources, particularly practice materials. Other major publishers of books on HK legal topics include the publishers below:
There are a number of bilingual legal dictionaries and glossaries available in print and online. The most widely cited are the bilingual glossaries published by the HK Department of Justice (DOJ):
• Chinese-English Legal Glossary (DOJ)
• HK English-Chinese Legal Dictionary (HK: LexisNexis Butterworths, 2005)
Also, HKU’s Lui Che Woo Law Library (see 3.7 below) publishes a mostly English-language legal research glossary.
Halsbury’s Laws of HK is a 44-volume reference work available in print and online through LexisNexis. Similar to other such works like American Jurisprudence (AmJur) and Corpus Juris Secundum (CJS), its contents are arranged alphabetically by topic and updated regularly. Each entry has a brief description of the area of law annotated extensively with statute and caselaw citations.
There are six libraries in HK with notable law collections: three academic, one court, one legislative, and one public. They each have websites describing their collections and policies:
Newspapers, magazines, and blogs are great places to get context when researching legal issues. The venerable South China Morning Post (subscription required) is HK’s most prestigious English-language newspaper. The Standard (English) and HK Economic Times (Chinese) are the main financial newspapers. And HK Journal provides “thoughtful writing about political, economic and social issues relating to HK and its neighborhood.” Hyperlinked directories of more HK newspapers and magazines as well as blogs can be found on the World Press website. For historical research, consult the HK Newspaper Clippings Online full-text image database. It has “more than 150,000 images covering the early 1970s to 1994. Most of the topics are related to politics and government in HK and materials were primarily gathered from the South China Morning Post and the HK Standard.”
Non-governmental organizations (NGOs) are set up by a person or group of persons concerned typically about a single issue (e.g., the environment, human rights) for the purposes of educating the public about problems, proposing solutions, and lobbying governments. Below are six HK-based NGOs whose work implicates the law:
• Amnesty International HK; focus on human rights; click on the “News” and “Resources” buttons to retrieve HK information
• Asia Monitor Resource Centre; focus on labor; type “Hong Kong” in search box to retrieve information
• Greenpeace China; focus on the environment; type “Hong Kong” in search box to retrieve information
• Hong Kong Housing Society; focus on housing; click on the “Info Bank” and “Download” buttons to retrieve publications and videos
• One Country Two Systems Research Institute; focus on major social and economic issues; articles and reports available only in Chinese
As in England, the legal profession in HK is composed mostly of barristers and solicitors. The HK Bar Association (HKBA) represents barristers and oversees qualifications for admission and pupilage programs. The Law Society of HK (LSHK) is the analogous organization for solicitors. Both the Association and the Society websites have member lists and a wealth of information about the practice of law in HK. Additional practitioner websites include:
John Bahrij at the Chinese University of HK wrote an excellent book (click on “Products” and type “Hong Kong legal research” in search box) in 2007 on HK legal research covering primary and secondary sources, research techniques, and Chinese law. It also has appendices with abbreviations, links, and bibliographies. Although dated, Jill Cottrell’s instructive 1997 book provides information about print research on the eve of the online research revolution. And Peter Wesley-Smith wrote two helpful books in the 1990s that explain HK’s legal system and law sources: Introduction to the HK Legal System (3d ed., 1998) and The Sources of Hong Kong Law (1994).
Below are online legal research guides created by HK and foreign libraries, law schools, and other legal institutions and organizations:
There are five scholarly journals focusing solely or mostly on HK law. They each have websites describing their missions and contents:
• Asia Pacific Law Review (1992-present); from the City University of HK
• Basic Law Bulletin (2001-present); published yearly by the HK DOJ, Civil Service Bureau and Constitutional and Mainland Affairs Bureau
• HK Law Journal (1971-present); from HKU Faculty of Law; peer-reviewed journal; in addition to articles, each volume includes an index, table of cases, tables of legislation, and a personal injury appendix with caselaw annotations, awards and multipliers
• HK Lawyer (1993-present); published by the LSHK
• HK Law Student Review (1994-present); from HKU
-Centers, institutes and specialized programs at HKU:
Graduates wanting to practice law in HK must then complete a Postgraduate Certificate in Laws (PCLL) program. Overseas applicants and graduates of HK universities that do not offer the LLB degree must pass a conversion exam before they can be admitted into a PCLL program: