Legalculture
founded upon the socialist legal system in China and thus a very different legal culture.
Several studies have been conducted on Hong Kong's legal culture by local academics over the past 30 years.
This section analyses the findings of these studies.In 1987 Berry Hsu conducted a study to examine how far the attitudes and values of Hong Kong people conformed to the common law culture.133 Six legal concepts were identified as the cardinal common law features. Theywere respect of individual rights, the rule of law, judicial independence, the adversarial system with an independent legal profession, the jury system, and the right of silence and presumption of innocence.134
These concepts were broken down into dimensions for the purposes of designÂing a questionnaire. The questionnaire was administered to a random sample of the Chinese population of Hong Kong. Based on the results of the survey, Hsu concluded that the common law legal system had established itself in Hong Kong to a considerable extent.135 The Chinese members of Hong Kong's population expressed their cooperation with the legal system in that they insisted on their legal rights, resorted to courts to settle disputes, respected others' legal rights and were willing to defend others' legal rights. They also expressed positive values towards the adversarial system and an independent legal profession, the jury system, and the right of silence and presumption of innocence.136 However, Hsu also identified some weaknesses in the Hong Kong legal culture. A substantial number of Chinese people in Hong Kong â€?tolerate secret torture by police to collect evidence', and they had misgivings about the operation of judicial indeÂpendence, as it was found they believed a judge's career would be in jeopardy if his or her decisions displeased the government.137
One additional interesting (or significant) finding is that the Chinese populaÂtion of Hong Kong wanted the common law legal system to remain in Hong Kong after the transfer of sovereignty.138
Hsin-chi Kuan conducted a survey of the attitudes of Hong Kong peoÂple towards the rule of law in 1995, just two years before the transfer of sovereignty.139 The rule of law was expressed in terms of several statements: â€?no law, no crime', â€?equality before law', â€?law binds the ruler', â€?judicial indepenÂdence.' â€?inborn rights' and â€?presumption of innocence'.
An antithesis statement was also included: â€?obligations over rights'. The later statement was included to test how far the traditional Chinese precept that social order should be based on a hierarchy of status and roles rather than on the idea of inborn and inalienÂable rights would affect the attitudes of the people of Hong Kong. In this study,133 BHsu, op. cit.
134 ibid., p. 49.
135 ibid., p. 127.
136 ibid., pp. 94-5.
137 ibid., pp. 77 and 95.
138 ibid., p. 66.
139 H Kuan, �Support for the Rule of Law in Hong Kong,' Hong Kong Law Journal, vol. 27, no. 2, 1997, p. 187. people who disagreed with this principle would be deemed supporters of the rule of law.
Even though the study was on the rule of law, several items included in the meaning of the rule of law were similar to Hsu's study and were basic features of a common law legal system. Hence, Kuan's study can also be used to ascerÂtain whether common law culture existed in Hong Kong immediately before the transfer of sovereignty. The result was less promising than under Hsu's survey. Kuan found only little support for the â€?no law, no crime' principle, while there was a consensus in support of the â€?equality before law', â€?law binds the ruler' and â€?presumption of innocence' principles. The majority of the respondents still accepted the traditional Chinese precept of â€?obligations over rights'. Respondents were divided on the idea ofâ€?inborn rights' and the principle ofâ€?judicial indepenÂdence'. Kuan concluded that Hong Kong still lacked a solid cultural foundation for anchoring the rule of law beyond 1997. He believed that Hong Kong Chinese were more ready to stand up against encroachments affecting legal equality and due process than interference with inborn rights.
In 2004, seven years after the transfer of sovereignty and nine years after his first study, Kuan put similar statements to the Chinese population in the HKSAR again.140 As in 1995, an overwhelming majority of respondents agreed or strongly agreed with the â€?equality before law', â€?law binds the ruler' and â€?preÂsumption of innocence' principles.
There was even a slight increase. Although more respondents agreed to the â€?no law, no crime' principle in 2004, there was still a majority who disagreed, as occurred in 1995. Again the majority supÂported the â€?obligations over rights' statement, reflecting the strong influence of traditional Chinese culture. Respondents were again divided on the principles of â€?inborn rights' and â€?judicial independence'. It seems that there had not been significant improvement in the years after the transfer of sovereignty.At first the findings of Hsu and Kuan may seem conflicting. However, if one confines the understanding of a common law legal system to the more formal or procedural aspects of law, these studies concur that a common law culture had beenestablished among Hong Kong people long before the transfer of sovereignty and that it survived the transfer. The one troubling finding was that judicial indeÂpendence did not receive as much public support as one may have expected.141 Nevertheless, the judiciary is trusted by Hong Kong people and judges are perÂceived to be fair in deciding cases.142
In these studies, it was found that the level of education seems to be a major factor affecting people's acceptance of the common law culture. The higher the education level, the more likely will be the acceptance.143
140 H Kuan, �Popular Attitudes Towards the Rule of Law,' in L Siu-kai, Lee Ming Kwan, W Po-san and W Siu-lun (eds), Indicators ofSocialDevelopment: HongKong2004, Hong Kong Institute of Asia-Pacific Studies, The Chinese University ofHong Kong, Hong Kong, 2004, pp. 31-56.
141 S T Ng and H Kuan, �Legal Culture,' in L Sai-wing, W Po-san and W Siu-lun (eds), Indicators of Social Development: HongKong2006, Hong Kong Institute ofAsia-Pacific Studies, The Chinese University ofHong Kong, Hong Kong, 2008, pp. 25-46.
142 ibid.,p. 31.
143 B Hsu, op. cit., pp. 98-9; H Kuan (1997), op. cit., p. 200; H Kuan (2004), op. cit., p. 33.
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