The making of the rule of law in British Hong Kong : archival study of the conflicting roles of Hong Kong courts, 1843-1941

Abstract

This study is mainly concerned with the contradictory history of the rule of law in colonial Hong Kong. In the heydays of the British Empire, the British administration in Hong Kong was a typical authoritarian one, under which the law often served as the handmaiden for imperial rule. Many cases indicated that the rule of law in colonial Hong Kong was more like the rhetoric that obscured the real relationship between the colonised and colonisers and concealed the hypocrisy of the colonial law. However, there were also cases showing that the rule of law was not a pure myth, and the law was still an important source of authority even in pre-war Hong Kong. In these cases, the interests of colonists were frustrated from time to time, and the power of the ruling authority was also sometimes constrained by the law. The question to be addressed in this study is how to explain this coexistence of authoritarianism and the rule of law in pre-war British Hong Kong.

Drawing on archival sources, this thesis seeks to answer this question by focusing on the colonial judicial system itself, which was a crucial institution for the rule of law. Through the historical study of the courts in pre-war Hong Kong, the thesis finds that, during the era of authoritarian colonial rule, the courts in Hong Kong were vulnerable to political influences and were often used as an important instrument for the extension of imperial power. But oddly, this instrument was not as pliant as other arms of government, and sometimes it even produced counterproductive results. This study provides a rich and detailed analysis of Hong Kong’s court system against historical context and argues that the court there was much more complex and multi-faceted than many have thought. With closer observation, this study finds that, apart from being used as an instrument of imperial rule, the Hong Kong courts also played two other important roles: one was as a constraint on authorities, especially in the subtle relationship between the government and the courts, and another was as an arena of resistance and contestation, especially in lawsuits where the Chinese people were involved.

In searching the conflicting roles of Hong Kong courts and the rationale behind these roles, this study finds that the judicial-bureaucratic character of the Hong Kong courts, interacting with other factors such as legal transplantation and the political context of the Colony, greatly contributed to the contradictory history of the rule of law in British Hong Kong.

(An abstract of exactly 415 words)