Alric Wong and Wilson Lui on Four problems in appellate review of foreign law: Evaluating the Spectrum Approach (Common Law World Review)

“Four problems in appellate review of foreign law: Evaluating the Spectrum Approach”

Alric Wong (LLB 2025, PCLL Candidate) and Wilson Lui (Research Fellow, Centre for Private Law)
Common Law World Review
Published online: May 2026

Abstract: This article critically evaluates the Spectrum Approach as applied in the appellate review of findings of foreign law. The Spectrum Approach posits that the degree of deference to trial judges’ determinations of foreign law depends on the analogousness of the foreign legal system to the domestic legal system, situating cases on a spectrum between questions of fact (for dissimilar systems) and questions of law (for closely aligned systems). While the Spectrum Approach attempts to offer a structured framework, this article identifies four key deficiencies with the Approach: (1) over-emphasis on the common–civil law dichotomy, (2) circularity in assessing ‘similarity’ between legal systems, (3) artificial separation in the ascertainment and application of foreign law, and (4) indeterminacy for cases occupying the middle of the spectrum. This article argues that the Spectrum Approach involves unnecessary inconsistencies and complexities, which the Privy Council did not adequately address in its decision of Perry v Lopag Trust Reg. This article advocates for a flexible, context-sensitive adjudication without any rigid categorisation or sequential reasoning, ensuring consistency with principles of judicial restraint and fairness. This debate has important implications on the treatment of foreign law in domestic courts amid increasing cross-border litigation.

Elizabeth Wong on Returning to Hong Kong after commercial surrogacy: The court's decisions in FH v WB, and CS v SW (Common Law World Review)

"Returning to Hong Kong after commercial surrogacy: The court's decisions in FH v WB, and CS v SW"
Elizabeth Wong (JD 2025)
Common Law World Review
Published online: March 2026

Abstract: With the evolution of medical technology, surrogacy has become a favorable alternative for couples to create a family. Yet, section 17 of the Human Reproductive Technology Ordinance (Cap 561) prohibits commercial surrogacy in Hong Kong (HK), prompting many couples to seek paid surrogacy arrangements overseas. This practice creates complexities upon their return to HK with their surrogate-born child. Two significant cases, FH v WB and CS v SW involve cross-border commercial surrogacy arrangements where commissioning parents pursued parental orders under section 12 of the Parent Child Ordinance (Cap 429) to acquire legal parenthood. Although the time limit for the application had expired and unreasonable surrogate expenses were incurred, amounting to breaches, the Court of First Instance (CFI) adopted a lenient attitude and granted a parental order in both cases, prioritizing the welfare principle. This note will first go through the HK legislation and these two decisions, then compare the CFI's reasoning and policy considerations. The CFI faces challenges in reconciling the legislation and its precedents, resulting in legal gaps that indirectly allow commercial international surrogacy arrangements. The discussion will also delve in to potential solutions to effectively regulate commercial surrogacy, such as local legislative reforms or adopting international conventions.

Congratulations to Professor Hui Jing!

Congratulations to Prof. Hui Jing on his promotion to Associate Professor! Prof. Jing is a prolific researcher with an excellent publication record. He is a rare scholar of comparative trust law who can effectively cover both the Chinese and common law jurisdictions. He is one of the few experts worldwide capable of engaging deeply with both legal traditions. Prof. Jing is a valuable member of our Faculty, and this promotion is a well-deserved recognition of his contributions. To read more about Prof. Jing's research and publications, click here.

Hilary So on Estoppel: adopting constructive trust to remedy an unhonoured promise (Trusts & Trustees)

"Estoppel: adopting constructive trust to remedy an unhonoured promise"
Hilary H W So (JD 2024, PCLL 2025)
Trusts & Trustees
Published online: October 2025

Abstract: This article examines the scope for England’s recognition of remedial constructive trusts (RCTs) after reviewing the respective legal positions across common law jurisdictions. Having regard to relevant doctrines, jurisprudence and policy concerns, this article proposes estoppel with the following elements as the proper basis for recognising RCTs under English law: (i) a clear and unequivocal assurance by the promisor, (ii) detrimental reliance by the promisee, (iii) justice in all circumstances, and (iv) an appropriate apportionment by the Court. It further suggests that legislative intervention and proper judicial assessment are appropriate solutions to the general concerns about RCT in insolvency contexts.

New book by Eric Ip: Law and Justice in Hong Kong: Principles of the Legal System, Fifth Edition (Sweet & Maxwell)

Law and Justice in Hong Kong: Principles of the Legal System, Fifth Edition
Eric Ip
Sweet & Maxwell
Published in October 2025
507 pp.

Description: Comprehensively revised and updated, the fifth edition of Law and Justice in Hong Kong: Principles of the Legal System provides a comprehensive exploration of the legal framework of the Hong Kong Special Administrative Region of the People’s Republic of China—the sole common law jurisdiction in East Asia.

Incorporating analyses of recent judicial decisions and pivotal legal developments in the post-pandemic era, alongside the emergence of the ongoing artificial intelligence revolution, this edition enables readers to understand the core principles of law and the administration of justice that have shaped Hong Kong’s remarkable transformation from a modest fishing settlement into a premier global financial hub over nearly two centuries.

An indispensable resource for students and candidates preparing for professional examinations in Legal System, Constitutional Law, and Legal Methods, this book also serves as a valuable reference for legal practitioners, jurists, and general readers, both in Hong Kong and beyond, who are intrigued by the dynamics of an internationalised common law system functioning under the sovereignty of the world’s most influential socialist state.

Anfield Tam on The Tort of Malicious Falsehood and Mental Distress Damages (Torts Law Journal)

"The tort of malicious falsehood and mental distress damages"

Anfield Tam (BSocSc(Govt&Laws)&LLB 2024, PCLL 2025)

Torts Law Journal

Published online: July 2025

Abstract: It has been 124 years since the apex court in the UK last considered the tort of malicious falsehood. This common law tort has since been modified by statute such that the claimant no longer has to establish pecuniary loss to make out the claim. In George v Cannell, the UK Supreme Court returned a split decision as to whether the claimant can recover mental distress damages in the absence of pecuniary loss. The Court’s decision is appraised for clarifying the availability of mental distress damages for malicious falsehood. Yet, in rejecting the possibility of awarding such damages as an independent claim to pecuniary damages, the majority preferred doctrinal rigidity over making compensation for the actual loss suffered by the claimant, thereby also casting doubt on the effect of statutory modification of the tort.

Shi Tao Zhang on Pets in Protection Orders: A Comparative Analysis of Four Common Law Frameworks and Recommendations to Expand Hong Kong’s Animal Law Regime (JKJLS)

"Pets in Protection Orders: A Comparative Analysis of Four Common Law Frameworks and Recommendations to Expand Hong Kong’s Animal Law Regime"
Shi Tao Zhang (Exchange Student)
Hong Kong Journal of Legal Studies (Volume 18, 2024), pp. 121 - 147

Abstract: As women’s liberation and animal rights gain more popularity in mainstream discourse, the intersection of intimate partner abuse and animal cruelty has emerged as a novel area of law. What happens when one’s significant other hurts their pet during family disputes? If a victim of domestic violence applies for a protection order, can their pet be covered by it as well? This article focuses on the legal recourses and social resources that are available in four common law jurisdictions: the United States, Canada, the United Kingdom, and Hong Kong. Starting with an overview of the connection between animal abuse and domestic violence, it then explores the legal framework and community resources available to victims of domestic violence who want to include their animal in a protection order against their abuser and who want to be sheltered alongside their trusted pet in the United States, Canada, and the United Kingdom. An analysis of the normative principles that underlie these legal regimes is then used to determine the prevailing attitude of the law towards animals. Finally, an overview of Hong Kong’s legal regime on the topic highlights the urgent need for reform and gives way to recommendations formulated through the examination of empirical studies and comparative legal perspectives.

Stefan Lo on Privacy (New book chapter)

"Privacy"

Stefan Lo

in Hon Mr Justice Bokhary, Normann Witzleb, Neerav Srivistava (eds), Tort Law and Practice in Hong Kong (4th edition, Sweet and Maxwell, April 2025), Chapter 21
Published in April 2025

Abstract: This chapter examines tort actions protecting privacy of persons under the common law, with a focus on the tort of misuse of private information. This tort has developed significantly in the United Kingdom in the past two decades. Although there is little case authority on the tort in Hong Kong, there are some observations of the Hong Kong courts supporting the existence of the tort in Hong Kong. Apart from this tort, the chapter also examines how other torts can effectively protect privacy, including the tort of nuisance as set out by the UK Supreme Court in Fearn v Board of Trustees of the Tate Gallery [2024] AC 1.

Congratulations to HKU Law Student Finalists in Law Reform Essay Competition 2025

Congratulations to the 7 HKU Law student finalists in this year's Law Reform Essay Competition organised by the Law Reform Commission of Hong Kong. The topic was 'Should the common law tort of harassment in Hong Kong be reformed?' We are very pleased to see that all the finalists this year are HKU law students. The seven students are

• FUNG Wing Kan (Bachelor of Social Sciences (Government and Laws) and Bachelor of Laws (Year 4)),
• LEUNG Ting Man (Bachelor of Business Administration (Law) and Bachelor of Laws (Year 3)),
• LI Yinuo (Bachelor of Laws (Year 1)),
• MUI Yuen Ying (Bachelor of Laws (Year 5)),
• WONG Chin Hei Nathaniel (Bachelor of Laws (Year 3)),
• YEUNG Cho Yiu (Bachelor of Arts and Bachelor of Laws (Year 2)) and
• YEUNG Kei Shing (Bachelor of Laws (Year 3)).

All of their essays can be downloaded here. The Law Reform Commission held a ceremony to honour the students on 15 July 2025.

Simon Young et al on The Legal Response to Drugs and Social Supply: The Case of Hong Kong (HKLJ)

"The Legal Response to Drugs and Social Supply: The Case of Hong Kong"
Karen A Joe-Laidler, Kate Lowe, Simon NM Young and Tin H Cheung
Hong Kong Law Journal, Vol. 53, Part 3 of 2023, pp.913 - 939

Abstract: Drug exchanges are often embedded in non-commercially oriented, informal arrangements among social networks. Such exchanges are based on a social supply paradigm where reciprocity and sharing are integral to obtaining and consuming drugs. This raises questions as to how the justice system responds to this type of engagement with the market. While some countries have accommodated to the realities of social supply with a comparatively lenient approach, others have taken a different route. We examine Hong Kong’s legal response to the emergence of social supply in the context of its common law system and prohibitionist drug policies. We draw on 96 legal cases involving social trafficking. In keeping with the common law system, Hong Kong courts draw on UK cases in considering social trafficking, but diverge in its rationale, finding that “trafficking is trafficking”. As such, the courts have not viewed social trafficking as a mitigating factor as elsewhere, but it has also not been seen as an aggravating factor. Our Analysis suggests that the mitigating effect of self-consumption is being offset by the consideration of latent risk. This legal response leads us to conclude that the emergence of social supply has not challenged but reinforced Hong Kong’s prohibitionist policies.

Ziyue Zhou and Kwan Yuen Iu on Catalyst for Common Law Evolution: Experiment with ChatGPT and a Hypothetical Common Law Jurisdiction (Asian Journal of Law and Economics)

"Catalyst for Common Law Evolution: Experiment with ChatGPT and a Hypothetical Common Law Jurisdiction"
Kwan Yuen Iu and Ziyue Zhou (PhD candidate)
Asian Journal of Law and Economics
Published Online: 5 January 2024

Abstract: This paper aims to carry out empirical analysis of the viability of large language models (LLMs), specifically ChatGPT, in simulating the common law system and facilitating its evolutionary processes. Drawing on the Theory of Rules Evolution, it is understood that common law generates efficient rules by natural selection through constant litigation. Nonetheless, this evolutionary mechanism faces several hindrances. The process of change is typically slow and incremental. Courts often have to wait for a case that’s deemed ‘appropriate’ before they can change the law, leading to extended delays. Additionally, courts frequently struggle to make efficient decisions due to limited information. Other factors that decelerate the creation of efficient rules include judicial bias, unequal distribution of resources among litigating parties, and the diminishing presence of a competitive legal order. This study first assesses ChatGPT’s capability to embrace the essence of the common law system, namely the doctrine of stare decisis. We then assess its potential to overcome the hindrances in common law development and promote efficient rules. Through a series of meticulously designed hypothetical cases set in a virtual jurisdiction called the “Matrix Kingdom,” we observed that ChatGPT mimic the functions of a common law court by citing, following, and distinguishing its own precedents, but it accomplishes this with significantly fewer resources and in less time. This implies that humans can introduce hypothetical legal situations, enabling LLMs to replicate the natural selection process observed in the common law system but with a significantly accelerated pace. Given that LLMs are trained with diverse information sources, not just the factual contexts of cases, they could potentially lower the informational constraints in decision-making. As such, LLMs might significantly contribute to the evolutionary processes of common law development. However, it is important to remain cautious of certain limitations, such as the potential for AI Hallucination and inherent biases in LLMs, which require careful consideration and management.

Wilson Lui on Treatment of Foreign Law in Hong Kong (Hart Publishing book chapter)

"Hong Kong"
Wilson Lui (Pre-Doctoral Fellow)
in Kazuaki Nishioka (ed), Treatment of Foreign Law in Asia (Hart Publishing: October 2023), Chapter 3, pp. 25–50

Summary: This chapter details the processes to plead and prove foreign law in Hong Kong courts, which follow the ‘traditional ’ or ‘ orthodox ’ views and approaches in common law closely. These processes have been reinforced and supplemented by a wealth of local and overseas authorities in recent years. There might be room for these processes to be further refined or expanded. This chapter argues that some relaxation from the traditional strictures in favour of a more malleable framework on the sources and methods of proving foreign law is not only normatively compelling but also practically sensible. However, it is unlikely that these adjustments will radically change the current regime, or impact greatly on the popularity of Hong Kong as a forum for litigation. Moreover, while an international or regional instrument unifying the treatment of foreign law might be useful, it is unclear how the position in Hong Kong can be reconciled with those in some other civil law jurisdictions in Asia and elsewhere, where a more active and aggressive approach in ascertaining foreign law is taken. Rather, interregional approaches within the Greater Bay Area or Greater China to access and ascertain foreign law might be worth exploring.

Hualing Fu interviewed on Innovating Legal Education at HKU (Hong Kong Lawyer)

"Innovating Legal Education at HKU"
Doris Yu
Hong Kong Lawyer
October 2023

As Dean of the Faculty of Law at The University of Hong Kong, Fu Hualing is keenly aware of the importance of innovation in legal education. His job is important in guiding and shaping the next generation of legal professionals. Effectively doing this requries hiring high quality professors, restructuring curricula and incorporating technology into course work that allows both faculty and students to keep up with new emerging practice areas and the changing demands on the legal profession. The past few years have been marked by change, and those that lead the education of legal professionals have to adapt to the new environments, the confluence of Chinese law and common law, new technologies and new ways of working for the legal profession...Click here to read the full interview.

Massimo Lando on Reframing the English Foreign Act of State Doctrine (The Modern Law Review)

"Reframing the English Foreign Act of State Doctrine"
Massimo Lando
The Modern Law Review (Vol. 86, no. 5, Sep 2023)
Published online: 29 September 2023

Abstract: This article proposes a way to reframe the English foreign act of State doctrine. The doctrine is an established rule of English common law but its contours and application remain ill-defined, despite the Supreme Court's restatement in Belhaj v Straw. The doctrine in its current form emerges from the accretion of precedents over some 350 years, but still lacks a unifying framework bringing its different strands together. This article argues that English courts should reframe the doctrine by reference to the distinction between elements of a rule that are embedded in its definition, called ‘limitations’, and elements of a rule that exist separately from it, called ‘exceptions’. This distinction has been developed in legal philosophy to classify the elements of wrongs as definitional elements, constitutive of liability, and defences, defeating liability. Reframed according to this distinction, the English foreign act of State doctrine can be streamlined into one, single rule, instead of the three rules set out in Belhaj v Straw. This reframing has implications for the doctrine's characterisation as one of justiciability, abstention or restraint, and its compatibility with the duty to do justice, including under the European Convention on Human Rights.

Simon Young on Interpreting Hong Kong's National Security Law (SCMP)

"Why Beijing must respect Hong Kong courts' interpretation of national security law"
Simon Young
South China Morning Post
8 July 2020

Like a signal No 8 typhoon, the national security law directly hit Hong Kong just before midnight on July 1, leaving us to pick up the pieces. One of those pieces is its interpretation.

     Some have asked why bother as it is like other Chinese laws – vague and open to manipulation through interpretation by the authorities. Only the National People’s Congress Standing Committee appears to have the power to interpret the law. Let the political struggle continue, they say.

     As a law professor and practitioner, I find such a defeatist attitude unhelpful. Cases under the new law have commenced. Lawyers need to advise on it and courts must apply it in adjudicating cases. The law is upon us and we cannot sit idle in fear, waiting for some authority to tell us what it means. In affirming our autonomy, questions of interpretation should be carefully considered on our own in accordance with existing legal practices and principles. 

     The national security law has been added to Annex III of the Basic Law by the NPC Standing Committee. Annex III national laws are to be “applied locally” – that is, by reference to local circumstances and standards. Hong Kong judges and practitioners work in a common law legal system, having been educated and trained in the common law tradition... Click here to read the full article.

Puja Kapai on Undue Influence and Unconscionability in Comparative Common Law: Delivering Contextualized Justice for Minority Sureties (J of Transnational Law & Contemporary Problems)

"Undue Influence and Unconscionability in Comparative Common Law: Delivering Contextualized Justice for Minority Sureties"

Puja Kapai
Journal of Transnational Law and Contemporary Problems
Spring 2019, Vol. 28, Issue 2, pp 361-448

Abstract: Legal transplantation through colonization, mass migration, and—more recently—globalization has long been under the microscope of scholars, anthropologists, and lawyers, among others, who have sought to better understand the workings of the law in contexts foreign to its place of origin. This quest for understanding the relevance and operationalization of law in different contexts is part of the broader discourse of legal pluralism, which encompasses the study of the role of formal and informal normative values and institutions and the interaction between them as alternative, overlapping, or conflicting systems of relational ordering in diverse socio-political contexts. The law’s effectiveness as a tool for responsive justice is brought into sharp focus due to implicit biases which result from the law’s grounding in a dominant cultural framework which leaves minorities outside its legal lens. When the legal order delivers differential justice by overlooking or distorting the lived realities of those who fall outside law’s original frame of reference, it befits a critical inquiry about the law’s commitment to equality and non-discrimination in a plural legal order. The increasing convergence of legal systems cannot, on its own, be taken as determinative of an on-the-ground shift in values among all populations, communities, and peoples. Without an accompanying shift at the societal level, the law risks marginalizing and excluding minorities from an accessible framework for justice. Indeed, equality scholars have long argued that justice requires more than equal treatment and warrants a review of the substantive law itself as much as issues of procedural propriety in its application in demonstrating law’s fairness in terms of outcomes under the law. Despite the open-ended presentation of the common law as an apparatus with sufficient flexibility to achieve substantively just outcomes (and prevent miscarriages of justice) through the use of equitable principles where necessary, limitations inherent in the law’s institutional structure, how its content is populated, its reliance on agents for its dispensation, and its value-laden interpretive and analytical methodologies carve out an underclass of claimants for whom substantive equal justice remains unachievable. Law’s capacity to fulfill its function to deliver meaningful justice rests on its capacity to recognize the full range of complex legal subjects that may present themselves before it and to assess, understand, and interpret their claims and actions meaningfully by acknowledging the impact of the varied contexts within which human activity occurs. This paper critiques law’s purported neutrality in the field of contract law. It uses the doctrine of undue influence as a vehicle for investigating and understanding the implications of law’s entrenchment in a particular cultural context. Reviewing courts’ analyses of the factors grounding a successful claim of undue influence in guarantee contracts involving individuals of minority background, this paper examines the law’s capacity to identify and incorporate broader contextual factors to protect minority claimants against unfairly procured contractual liabilities in a range of jurisdictions. The paper’s critique of the courts’ analyses and framing of cultural factors in relation to the doctrine presents the imperative for a critical re-examination of modern jurisprudence developing judicial doctrine and its capacity for dispensing justice for subjects situated within plural normative orders. In doing so, the Article breaks ground with traditional rule of law analyses which ground conversations about law’s impartiality on law’s principled commitment to equality or, alternatively, seek an essentialized brand of justice. Instead, it avoid essentialism while placing burdens for due diligence where they are likely to be met. Building on this model, the Article offers arguments for incorporating considerations informed by a variety of social and human conditions in efforts to deliver substantive justice for all people regardless of their race, color, religion, or other background. This proposal bears notable implications for devising bespoke analytical tools which may well be specific to a legal field to ensure that legal understandings are rooted in the lived realities of those seeking law’s justice. Such an approach has the potential for development and application in a range of other areas of law such as violence against women and children’s rights. Click here to read the full text.

New Edition: Law and Justice in Hong Kong (3rd edition) by Eric Ip (Sweet & Maxwell)

Law and Justice in Hong Kong (3rd edition)
Eric Ip
Sweet & Maxwell
August 2019

​"It is difficult to overstate the value of this book to a variety of users. It offers constitutional, historical and societal context for a comprehensive description of the operation of law and justice in Hong Kong." 

Mr Justice Robert French, AC, Non-Permanent Judge of the Hong Kong Court of Final Appeal

     Extensively rewritten and revised, the third edition of Law and Justice in Hong Kong continues to offer readers a comprehensive account of the legal system of Hong Kong — the only common law jurisdiction in East Asia. Fully updated, it encourages readers to appreciate the underlying values of legal practice and the administration of justice in the context of wider global and regional developments. It explains the crucial role played by the rule of law in Hong Kong’s historic transition from a fishing settlement into a leading international financial centre over the course of nearly two centuries.

     An essential text for students studying Legal System and Legal Research, this book is also useful to legal practitioners, jurists, and general readers, both in Hong Kong and abroad, who find interest, if not indeed intrigue, in the spectacle of an internationalised common law jurisdiction under Chinese sovereignty.

Han Zhu and Albert Chen on The Oath-taking Cases and the NPCSC Interpretation of 2016 (HKLJ)

"The Oath-taking Cases and the NPCSC Interpretation of 2016: Interface of Common Law and Chinese Law"

Han Zhu (PhD 2016) and Albert HY Chen

Hong Kong Law Journal

Vol 49, Part 1 of 2019, p 381

Abstract: The oath-taking cases involving the disqualification of six Legislative Councillors in Hong Kong and the National People’s Congress (NPCSC) Interpretation in 2016 on oath taking were highly controversial. This article traces the origins of the oath-taking law in Hong Kong to its English roots and explains the difference today between the consequences of failure to comply with the oath-taking requirements by Hong Kong legislators on the one hand and by British Members of Parliament on the other hand. It analyses the distinction between interpretation, supplementation and amendment of the Basic Law in the context of NPCSC interpretations. It also considers the circumstances in which an NPCSC interpretation should have retrospective effect.

Michael Ng on Imaginaries of Chinese Legal Transplantation in Common Law (new book chapter)

"Judicial Orientalism: Imaginaries of Chinese Legal Transplantation in Common Law"
Michael Ng
in Chinese Legal Reform and the Global Legal Order: Adaption and Adoption, (Cambridge University Press, Nov 2017), pp. 211 - 237

Introduction: Hong Kong, a common law jurisdiction with a predominantly Chinese population of mainland ancestry, offers an ideal site in which to investigate the historical laws of China from a comparative perspective.   Since the early twentieth century, Hong Kong courts have accumulated more than one hundred years of experience dealing with cases of historical Chinese marriage that took place in Mainland China during the Republican era (1912-1949), forming a common law narrative of the historical changes that the law underwent from the imperial to modern legal systems.  Into the twenty-first century, a considerable number of family and succession law cases that touch upon the issues involved in these historical marriages continue to be brought before the courts of Hong Kong every year.  This chapter challenges the century-old approach to narrating how family law changed in Republican China and raises wider methodological concerns about the tendency of common law-trained judges to follow judicial precedents based on archaic documentary sources and to adopt abandoned historiography in their investigations of Chinese legal transplantation.
     In deciding how to ascertain the meaning of the law governing these matters, the Hong Kong court (and apparently also the court of Singapore) demarcates historical China by the effective dates of the various books of the Republican Civil Code transplanted from the West from 1929 to 1931.  Cases concerning matters that took place prior to 1929 (primarily those dating to the late Qing [mid-nineteenth century to 1911] and Beiyang [1912-1928, also known as warlords period] eras) are decided with reference to the Qing Code and Chinese custom, whereas those concerning matters that took place in the Nationalist era (1928-1949) are decided solely on the basis of transplanted legal codes modelled on European templates.  Hence, traditional Chinese law and custom are ignored.
     This conventional judicial practice of demarcating the Chinese legal past has gone largely unchallenged for the past hundred years in both common law courts and in legal scholarship in Hong Kong or other former British colonies in which Chinese law remains relevant to civil lawsuits.  However, this chapter argues, through a critique of a Hong Kong Court of Final Appeal (CFA) case important to understanding Chinese family law, that this century-old judicial approach is flawed and indeed Orientalist, particularly in its understanding of how historical legal transplantation took place in China.  Such an approach, if not corrected, will remain the authority in directing judges in deciding family law cases not only in Hong Kong but also in other former British colonies populated by indigenous Chinese such as Malaysia and Singapore.  More importantly, this chapter also argues that such a  judicial approach is but one example of the Orientalist knowledge system governing Chinese legal traditions and legal culture in general, family law and custom included, within common law.  Here, drawing on Teemu Rusko-la's work on legal Orientalism, judicial Orientalism is defined as an epistemological representation of traditional Chinese law and legal culture produced and recycled in the courtroom and common law knowledge system.  Such a representation for the past century distinguishes traditional Chinese jurisprudence from modern (by default Western) law, thereby 'othering' it.  The resulting knowledge system cements the cultural distance between the modern West and the traditional Orient in law, as this study shows.
      The case analysed here concerns two women who became concubines in Nationalist China.  The CFA imagines a binary division between pre-transplant customary Chinese law on the one hand, and post-transplant modern Chinese on the other, and presumes that traditional Chinese jurisprudence is irrelevant in understanding the legal meanings ascribed to the new legal codes imported from the West.  Such a simplistic presumption and binary division has produced incorrect judgments on statutory interpretation of the transplanted legal codes practised in Republican China, as well as huge injustices to litigants, as the following landmark 2001 CFA judgment on the status of the two Nationalist-era concubines, Suen Toi Lee v Yay Yee Ping, shows.
      The chapter begins with the story of two deceased women, Sung So Chun and Chu Lee, whom a man named Sung Chuen Pao took as concubines in Shanghai in 1933 and 1945, respectively, following his marriage in 1929.  Both Mr Sung's wife and other family members openly accepted and recognized the two women as his concubines.  In 1951, Mr Sung moved to Hong Kong, where Mrs Chu joined him in 1952.  Mrs Sung and Mr Sung's wife remained in Mainland China until their deaths in 1983 and 2000, respectively.  Mr Sung and Mrs Chu died in 1985 and 1987, respectively.
     The appeal before the CFA in 2001 concerned Mrs Chu's estate, with the court asked to determine who was entitled to it.  The appellant, Suen Toi Lee, was Mrs Sung's daughter by Mr Sung.  If both Mrs Sung and Mrs Chu had been Mr Sung's concubines, then the appellant was entitled to a share of Mrs Chu's estate as an 'issue' under the definitions provided by the Intestate Estate Ordinance of Hong Kong.  If neither woman had been a concubine, then none of Mr Sung's children were entitled to any of Mrs Chu's estate, which would instead remain in her own family.  Because she had no children herself, in this case her estate would pass to her siblings, whose interests in the case were looked after by Mrs Chu's niece, the respondent Yau Yee Ping.
      The two women's union with Mr Sung was openly accepted by the man's family, including his wife, and one of them bore him a number of children.  Yet, after their deaths, the women were rules by the CFA in 2001 to have, at best, enjoyed the status of mistress, thereby causing their issue to lose her right to succession within Sung's family under Hong Kong law.  The critical issue that the CFA had to consider in this case was whether, as a matter of historical fact, the Book of Family of the Republican Civil Code (Book of Family hereafter), which came into effect on 5 May 1931, abolished the system of concubinage in Mainland China, rendering any union of concubinage created after that date (such as that of Sung and Chu) unlawful or invalid.  The CFA judges ruled unanimously that the Book of Family had indeed abolished the system of concubinage, and therefore that it was unlawful for any union of concubinage to take place thereafter.  This deprived the two now-deceased women of their legal status as concubines. 
     The CFA's judgment was based on three lines of reasoning: first, that the express provision against bigamy in the Civil Code was meant to prohibit the taking of concubines; second, that the Civil Code had created a new institution known as the 'household' to replace the old institution of 'concubinage', and through such creation concubinage was meant to have been abolished; and, third, that a published statement by the law drafter pointed to his intention that the transplanted Civil Code be used to uphold gender equality and eliminate concubinage in China by no longer mentioning concubines in the code.  This view has become common law authority on the interpretation of the transplanted modern marriage law of Republican China, and will remain so until overruled by the CFA or a common law court of similar standing in the future.
     Drawing on the latest scholarship of historians of the marriage regime in Republican China (1912-1949) and archival materials, this chapter argues that such judicial representation not only does not stand up to historical scrutiny; it actually distorts the way in which the marriage law was intended, understood and practiced in the Republican era.  More importantly, it demonstrates that it was the Orientalist image of traditional Chinese law and custom that has been continuously produced and recycled in the common law knowledge system over the past century that contributed to the anomalies of the CFA judgment. In the following sections, the chapter rebuts each of the three lines of reasoning offered by the CFA in its ruling in Suen Toi Lee v Yau Yee Ping, before turning to a succinct history of the common law knowledge system on traditional Chinese law exhibited in a set of judicial decisions, colonial reports and publications on Chinese law and custom relied on by the courts, as well as in common law textbooks that are still in use in law schools today.  This analysis suggests the need for a revision of the judicial approach of Orientalising, and thus the neglecting of traditional Chinese jurisprudence in interpreting modern Chinese law.  This chapter argues for a 'thicker description' of the legal reform process in China and perhaps in other parts of Asia.  Such a description requires that imported legal codes and systems no longer be analysed as the simple displacement of old, traditional institutions by the implementation of Western-inspired and modern legal regimes.  Instead they ought to be understood as the outcome of a more complex interplay between indigenous and foreign legal ideas and the way in which those ideas were discussed, interpreted and practised in their historical context.  In that process, traditional ideas and practices were assimilated with the borrowed legal regime in a quest for legal modernity that fit particular political and societal needs.

Eric Cheung on Joint Enterprise Murder in Hong Kong (CCPL Occasional Paper)

"The Dichotomy Between Foresight and Intention in Joint Enterprise Murder: Should our Top Court Depart from Chan Wing Siu and Sze Kwan Lung?"

Eric TM Cheung
CCPL Occasional Paper No. 28
October 2016

Abstract: Since 21 June 1984, Hong Kong courts have faithfully followed the Privy Council decision in Chan Wing Siu (which was adopted by our Court of Final Appeal in Sze Kwan Lung after the handover) to hold a secondary party liable for joint enterprise murder based on his participation with foresight of a real risk of his co-adverturer inflicting grievous bodily harm on the deceased victim, even if he did not so intend. On 18 February 2016, the UK Supreme Court and Privy Council held in Jogee that the common law took a “wrong turn” in Chan Wing Siu by equating foresight with intent rather than treating foresight as evidence of intent. This landmark decision has prompted our top court to grant leave to appeal on 17 May 2016 in Chan Kam Shing to re-examine the Chan Wing Siu doctrine of extended joint enterprise. While pending the appeal hearing, there is yet another interesting development in that the High Court of Australia decided on 24 August 2016 in Miller not to follow Jogee but affirmed Chan Wing Siu. With the help of volunteer law students, a comprehensive survey of our appellate court decisions (both reported and unreported) before and after Chan Wing Siu on joint criminal enterprise resulting in the victim’s death has been done. This paper traces the relevant history of development of the doctrine of extended criminal joint enterprise in Hong Kong and concludes that our top Court should now depart from Chan Wing Siu and Sze Kwan Lung and reinstate the mens rea requirement of intention instead of foresight for joint enterprise murder.  Click here to download the full paper.