Introduction

Situated at the south-eastern tip of China, Hong Kong has a territory size of only 1104 square kilometres but there are 6.98 million people living in it. The vast majority of the population is of Chinese descent, with foreign nationals comprising 5 per cent of the population.

Hong Kong is a Special Administrative Region of the People's Republic of China (PRC) following 150 years of British colonial rule, from 1842 to 1997. Freetrade, low taxation and minimum government intervention are the main characteristics of Hong Kong's economy. With the mainland of China as its most significant trading partner, Hong Kong is the world's 12th largest trading economy. Hong Kong maintains strong links to mainland China and the rest of the Asia-Pacific region through its service economy.

In studying the law and legal institutions in Hong Kong, a central theme that emerges is how a common law legal system was established, is maintained and will develop in a non-Western or Chinese society.¹

As Sir Anthony Mason said, the common law may mean many things.² In narrow terms, â€?it signifies the vast body of legal rules and principles brought into

1 B Hsu, The Common Law in Chinese Context, Hong Kong University Press, Hong Kong, 1992.

2 A Mason, �The Role of the Common Law in Hong Kong', in J Young and R Lee (eds), The Common Law Lecture Series 2005, Faculty ofLaw, The University ofHong Kong, Hong Kong, 2006. existence by the decisions and judgments of the courts in England and other common law jurisdictions over a period of more than 800 years.'^{[155] [156]} In a wider sense, it

stands for a set of concepts, interests and values which it has protected during the course of itslong history. They include the rule oflaw, the independence of the judiciary, access to the courts, the separation of the powers of the government, liberty of the individual, freedom of expression, freedom of association, no detention or imprisonment without lawful authority and naturaljustice...

Although there is no logical precondition that the common law can only be practised in Western (or Anglo-Saxon) cultures, Hong Kong is one of the few non-Western societies that the common law, in both the narrow and wide senses, has been successfully transplanted, and continues to prosper. What we find in Hong Kong is not just some superficial borrowing of certain common law legal principles and practices. In some areas, its development even leads the common law world.^[158] Also, the common law legal system in Hong Kong respects the rule of law, the underlying spirit of the common law, and accompanying values such as equality, anti-corruption and procedural fairness, as well as its counterparts in the West.

Nevertheless, as Hong Kong is situated physically and culturally outside the West, its common law legal system must still evolve and develop unique features to accommodate and assimilate with local customs. In particular it needs to meet demands arising out of the fundamental changes in its constitutional order that occurred when the PRC resumed its exercise of sovereignty over the territory on 1 July 1997. These demands are challenging as the common law is not a value-neutral system but requires constitutional institutions of a certain nature to sustain.

This chapter is concerned with how a common law legal system can thrive in Hong Kong's unique non-Western culture.

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