By David Kwok[1]
Abstract
In Hong Kong’s early colonial days, even though English law courts were firmly established in the colony, the local Chinese still went to the temples or their community leaders to seek a kind of justice that was familiar and made sense to them. A bifurcation between the two ‘justice’ systems, therefore, existed. The Chinese way of doing justice was mainly mediatory. In contrast, the English courts administered adversarial trials. Whilst the focus of the former is to avoid full blown litigation because it is seen as a disruption to social harmony, the judge in an English adversarial trial does not attempt to help the parties to settle their dispute, but (s)he is there to adjudge who wins and who loses. Slowly, as Hong Kong’s society progressed and modernized, the use of the English courts became more common. But the process was long and arduous and it took several decades for the new and foreign legal culture to settle and sink in.
I. Introduction
The purpose of this paper is to contrast the Chinese mediatory dispute resolution mechanism to the English adversarial trial in the context of 19th century Hong Kong. Whilst the focus of the former is to avoid full blown litigation, because it is seen as a disruption to social harmony, the judge in an English adversarial trial does not attempt to help the parties to settle their dispute, but to adjudge who wins and who loses. These two very different worlds of legal culture, or ideal types, met in Hong Kong starting from the mid-nineteenth century. As one would expect, the contact between them created confusion and it took an arduous process for the local inhabitants of Hong Kong to adapt to the foreign laws and customs. Even so, a bifurcation still existed in the early colonial days of Hong Kong; the local Chinese preferring the Chinese ways of dispute resolution, whilst the English laws and procedures applied mainly to the Europeans in Hong Kong.
II. Chinese Mediatory Dispute Resolution
Chinese history is replete with examples where imperial magistrates were reluctant to give a ruling when litigation arose. Instead of ruling who was right or wrong, mediatory means were employed to end the litigation. Chen discusses a case of the Eastern Han period in which a mother sued her son for not being filial. The magistrate, by the name of Chou Lan, went to the household of the mother and son, and gave lessons on ethics because he believed the case would not have happened if they had such education.[2]Another example is that of Hai Rui, who was an official in the Ming times. Hai gained a reputation as a fair judge in adjudicating cases. Despite this, and being influenced by Confucian teachings, he saw litigation as an indication of ‘unhealthy social phenomenon [and] moral decline.’[3]Even though litigating through the imperial courts was an established avenue for seeking justice, imperial magistrates and officials did not see it as the ideal method of resolving disputes. Litigation was seen as an antithesis, as well as menace, to social harmony. Thus the mixture of education and mediation was seen as the most effective way to deal with and dissipate disputes in society.
During the Maoist years, mediation was not only encouraged, it had also been institutionalized. One of the key developments was the establishment of People’s Mediation Committees. People’s Mediation Committees were usually run by the cadres and were spread throughout the country, making mediation easily accessible to the masses. The setting-up of people’s mediation proved to be a big success. Its effectiveness was recognized and enshrined in the Constitution.[4] Lubman notes that ‘in 1957, Liu Shaoqi, China’s prime minister before the Cultural Revolution, called people’s mediation the “first line of defense” in the work of “political-legal construction.”’[5] Various regulations were promulgated to govern people’s mediation and it was not until 2010 when the first law on it was passed.[6] The People’s Mediation Law of the People’s Republic of China (PRC) came into effect in 2011.[7] One of the aims of the law is to protect harmony and stability of society (Art. 1). Further, another object of people’s mediation is that people’s mediators will use persuasion and guidance to help disputing parties to settle disputes (Art. 2). Statistics show that in 1986 the ratio of the number of disputes dealt with by people’s mediation to the number of cases dealt with by the courts was 5.571:1.[8] In 2009, the number of disputes handled by people’s mediation was some 5.79 million, whilst those handled by the courts was 5.80 million, the ration being 0.9995:1.[9] Whilst some see the figures as indicating a decline in the use of people’s mediation, we can also conclude from the figures that people’s mediation is just as important as the courts, as the number of disputes dealt with by each was roughly equal.[10] The popularity of people’s mediation is not only a matter of cultural preference, but also economic considerations. The use of people’s mediation is far more cost-effective compared to litigation because only the cost of operation of the committees needs to be recouped from the parties.[11] In recent years, there has been increased cooperation between the Chinese judiciary and People’s Mediation Committees resulting in the setting-up of people’s mediation workstations in court houses.[12]
III. The English Adversarial Trial
English adversarial trial processes differ from, and stand in sharp contrast to, Chinese mediatory dispute resolution. In a classic English trial, the judge typically does not adopt a litigation-avoidance attitude and seldom tries to help the parties to settle. Rather, the judge remains inactive and impartial, allowing the parties, or their advocates, to present and persuade the judge of their case. Jacobs describes the English judge as ‘inactive, passive and non-interventionist.’[13] Lord Denning describes the role of the English judge as follows:
In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries … And Lord Greene MR who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in the their disputations … let the advocates one after the other put the weights into the scales … but the judge at the end decides which way the balance tilts, be it ever so slightly. So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts …[14]
Langbein quotes a French observer to an English criminal trial in 1820 who had described that the judge ‘remains almost a stranger to what is going on.’[15] Whether or not there is some exaggeration in this statement, what we can see is that the role played by an English judge is fundamentally different to that of the inquisitorial-judge in continental civil law systems or the mediatory-judge in China.
As a corollary of the judge being passive, it is the parties or their counsel, who take the leading role and decide on what evidence to present to the court. The Oxford English Dictionary defines adversarial to mean ‘that involves adversaries, contested (freq. of legal proceedings) characterized by adversary or combative behavior; opposed, hostile.’[16]The English adversarial trial is just that; it is a fight between the parties. Lord Denning has put it this way: ‘in litigation as in war. If one side makes a mistake, the other can take advantage of it. No holds are barred.’[17] Such a way of dispute resolution is deeply rooted in English culture. Neilson explains that the Norman conquest in 1066 resulted in ‘wager of battle’ introduced into England.[18] In this mode of trial, an accused in a criminal case could defend himself from the charges brought against him by physically fighting the opponent, and to begin the proceedings the judge would make the decree ‘let them come armed.’[19] The trial by battle used in the ancient times has evolved, to some extent, to become the adversarial English trial that we see today.[20]
In today’s adversarial trial, even though it is no longer about physical fighting we see a different sort of fight, namely that of orality. Orality is ‘at the heart of the trial.’[21] In considering the practice in continental civil law systems in which written evidence is preferred over oral evidence, the Evershed Committee said:
It is of the essence of the English system (enshrined in such phrases as ‘an Englishman’s word is his bond’) that generally speaking … no writing or other formality is required to prove a right. Under the system, therefore, the greatest weight and importance is attached to the oral testimony of the parties and their respective witnesses.[22]
After a witness has given oral testimony, the evidence is then tested by cross-examination by counsel acting for the other side. This aspect of a trial is not without critique. With the object of showing inconsistencies in the testimony or attacking the credibility of the witness, often counsel embarrass, criticize and attack the witness in subtle ways. In the words of McEwan, the adversarial trial becomes a ‘theatrical spectacle’ and ‘the most effective advocate, rather than the truth, will win the day.’[23]
Another distinctive feature of the adversarial trial is the jury.[24] Generally speaking, it is a body of twelve ordinary citizens who have been randomly chosen to preside over a trial and act as the tribunal of fact in that trial. Stemming from the Magna Carta which provides for ‘trial by peers,’ the jury trial is a symbol of the common law.[25]Like the judge, the jury remains passive throughout the trial, listening to the oral testimony of the witnesses.[26] In medieval England, however, the judges’ involvement in a trial was so minimal compared to that of the jury, that Langbein calls the role of the medieval judge as ‘stunted or impoverished.’[27]Sir John Fortescue praises that the jury trial is one of the best ways devised to arrive at the truth:
‘… is not this method of coming at the truth better and more effectual, than that way of proceeding, which the Civil Laws prescribe? … The witnesses or Jurors are of the neighbourhood, able to live of themselves, not brought before the Court by either of the parties, but chosen and returned by a proper office, a worthy, disinterested and indifferent person …’[28]
However, the adversarial trial has been criticized as being ‘too expensive … too slow … too unequal … too uncertain … and incomprehensible to many litigants.’[29] In the Woolf Reform in England and Wales, Lord Woolf recommended a change to the trial system, to render it ‘less adversarial and more cooperative.’[30]
IV. Bifurcation of Justice Systems in Hong Kong’s Early Colonial Days
A. THE SETTING UP OF ENGLISH LAW COURTS IN THE CROWN COLONY
After China was defeated in the Opium Wars, the British occupied the island of Hong Kong. Captain Elliot issued his first proclamation on 29 January 1841. So far as the administration of justice was concerned, a dual system or bifurcation was put in place, that is, Chinese laws and customs were to be applied to the native Chinese, whilst English laws applied to the Europeans residing in the island.[31]In this bifurcation, Captain Elliot wanted to have the local leaders or village elders control over the Chinese populace using Chinese laws and customs on top of which the English courts had overall supervision or control.[32]In doing so, first, Native Chinese Peace Officers, known as Paouchong and Paoukea, were appointed pursuant to Ordinance No. 13 of 1844.[33] Nine years later, the tepo (dibao) system was put in place. The tepos played a significant role in maintaining peace and order amongst the Chinese. Their duties involved fighting crime, dealing in land matters and claims, and giving character evidence in court.[34] One of their most important responsibilities was mediating civil disputes, the power of which came from Ordinance No. 3 of 1853.[35] Section 6 spelled out the procedure as to how a tepo would exercise his civil jurisdiction:
6. If any person has a complaint against a Chinese he may apply for redress to the tepo of the district…the tepo shall then summon all the assessors to his assistance; and shall proceed to hear and determine the case, not less than three assessors being present during the proceedings; and the decision of the majority of the assessors present, (the tepo voting as an assessor and having also the casting vote), shall be binding upon the parties: but the assessors instead of coming to a decision may, if they think it proper, refer the matter for the decision of the proper English tribunal.[36]
It is important to note that this section did not oblige a tepo to apply English law in any dispute before him. A tepo, being a local community leader, did not have knowledge of the English legal system. His duty was simply to bring about an amicable settlement, and the means that were employed and the venue for hearing a case were not regulated. Since the tepo himself, the assessors and the parties were all Chinese, Chinese mediatory ways of settling disputes would have been used. Even when the Tepo system was eventually abolished, it has been observed that ‘the Chinese secretly adhere to their own system faithfully.’[37]
In 1841, William Caine was appointed Chief Magistrate of Hong Kong. Captain Elliot, in his warrant, required Caine to:
exercise authority according to the laws, customs and usages of China as near as may be (every description of torture excepted) … over all the native inhabitants in the said island and the harbor thereof … where the crime according to Chinese law shall involve penalties exceeding in severity capital punishment, corporal punishment of 100 lashes, or 3 months’ imprisonment, or a $400 fine, he was to remit the case for the judgment of the head of the Government for the time being.[38]
Since Caine was a soldier, a Captain in the 26th Regiment of Infantry, he was ignorant of English laws.[39] Therefore, he administered justice in Hong Kong by ‘applying the discipline of the barrack-room.’[40]
In 1843, Sir Henry Pottinger became the first governor of Hong Kong. In a dispatch from Lord Stanley, Secretary of State for War and the Colonies, to Sir Henry Pottinger dated 1843, it was said:
With regards to Courts of Justice, the great object which you will have in view, in the infancy of the Colony will be simplicity and promptitude … In Hong Kong there could be no Code of Laws, British or European, to which the course and people at large could refer as possessing any authority before the British occupation of the Island. Hence it may be necessary to provide that the Law of England is to be in force there. But that general rule unqualified by exceptions would create many more difficulties than it would remove … the Law of England shall be in force, by an exception almost as general – namely, that no part of that Law shall be considered in force which may be inapplicable to the local circumstances of the Colony and its inhabitants … There will of course be in the Island a large body of Chinese persons to whom the Law of England would be a rule of action and a measure of right equally unintelligible and vexatious.[41]
In 1844, three years after the founding of the colony, John Walter Hulme became the first Chief Justice of Hong Kong. By Ordinance No. 15 of 1844, a Supreme Court was established in Hong Kong.[42] Section 3 provided:
3. And be it further enacted and ordained, that the law of England shall be in full force in the said Colony of Hong Kong, except where the same shall be inapplicable to the local circumstances of the said Colony, or of its inhabitants … that in all matters relating to the practice and proceedings of the said Supreme Court … the practice of the English Courts shall be in force … in all criminal proceedings arising or being within the jurisdiction of the said Court, where the party or parties proceeded against shall be of Chinese origin or extraction, then, and in every such case, it shall be lawful for the said Court, in its discretion, to punish the offender or offenders according to the laws of China.[43]
The above provision clearly showed that the transplant of English law to the newly established Crown Colony was a gradual process. The provision empowered the English law court to use criminal sanctions according to Chinese laws. The intention behind this adoption of Chinese law is not that clear. One possibility is that such adoption was used because harsher sentences were allowed under Chinese laws than English laws.
B. THE MAN MO TEMPLE’S AND TUNG WAH HOSPITAL’S EXERCISE OF JUDICIAL FUNCTION
Despite such setting-up of English law courts by the colonial government, the local Chinese simply could not adapt to the foreign laws and customs. Thus the bifurcation system as initially envisaged by Captain Elliot continued, whether or not to the liking of the subsequent colonial authorities. The Chinese was complacent with using Chinese methods of dispute resolution and the Man Mo Temple became a key site for this to take place. Hence a bifurcation existed, that is, the local Chinese went to the temple whereas the Europeans used to English law courts.
A nineteenth century source described how the Man Mo Temple became an important place for the administration of justice when Hong Kong was in its initial years of British colonial rule:
(1847 or 26th year of To-kwong [Daoguang]) Sz-man king [Si Wenjing], and one Tam-tsoi [Tancai] built the Man-mo-miu [Wenwumiao] (or Temple to the Gods of Literature and War), and here they ‘judged the people’ in public assembly… In the 30th year of To-kwang[Daoguang] (1851) the shop-keepers of Sheung-wan [Shangwan] or Upper Bay (changed now to Sheung-wan [Shanghuan] or Upper Circuit) repaired the Man-mo Temple, elected a Committee, and therein afterwards decided all cases of any public interest.[44]
The Man Mo Temple, according to Munn, was a ‘forum of local justice’ which had ‘become a part of colonial legend.’[45] Ernst Johanan Eitel (1838-1908) described the Man Mo Temple as follows:
Public spirit among the Chinese vented itself in guild meetings, processions and temple-committees. Among the latter, the Committee of the Man-moo temple (rebuilt and enlarged in May, 1851) now rose into eminence as a sort of unrecognized and unofficial local-government board (principally made up by Nampak-hong [nanbeihang] or export merchants). This Committee secretly controlled native affairs, acted as commercial arbitrators, arranged for the due reception of mandarins passing through the Colony, negotiated the sale of official titles, and formed an unofficial link between the Chinese residents of Hongkong and the Canton Authorities.[46]
The said committee of the temple managed the affairs of the Chinese community.[47] And the local Chinese people can be said to have submitted themselves to the jurisdiction of the temple.[48] Carroll calls the Man Mo Temple ‘an informal courtroom’ and notes that some European residents viewed the temple’s control over native affairs with suspicion, fearing that it was used as a base for xenophobic activities.[49] The arbitration of disputes, according to Tsai, was done by ‘invok[ing] the moral authority of the temple’s two deities: the god of literature, Lord Man Cheong [Wenchang], and the god of war, Kuan Ti [Guandi], whom the merchants regarded as a god of wealth and fidelity in business transactions.’[50]
The China Mail reported in 1893 the procession of the deities of the Man Mo Temple as follows:
(1 March 1893)
The streets have been so croweded (sic) with Chinese today that it is almost impossible to get about the busier thoroughfare. Not only have thousands of visitors arrived from Canton and the nearer villages to witness the great three-day procession, but the Chinese places of business in different parts of the town have been closed to enable the workmen to prepare for the carnival, which is likely to be one of the most noisy and distracting ever held in the Colony. Permission has been given to begin the din at 9 o’oclock(sic) tomorrow morning. As a matter of fact the beating of gongs and other noises have begun already.
(2 March 1893)
The procession in connection with the Man Mo temple commenced in all its noisy hideousness this morning, and in some parts of the town business was practically suspended for several hours. About tiffin hour a protest was at last raised by the banks and business houses in Queen’s Road, and an order was given for the Police to divert the procession from making a second journey along Queen’s Road from Pottinger Street to the City Hall. The execution of this order nearly gave rise to a riot …[51]
It is with little wonder that a procession at the Man Mo Temple attracted so much attention from the Chinese community both locally and from abroad. The status and significance of the temple, in the words of Chan, was that of a social, religious and semi-judicial centre.[52] It was a place where the ‘wealthy, powerful, respectable’ gathered because they ‘had a better link to the gods.’[53] In 1850, three years after it was built, the temple underwent refurbishment and extension. This fact shows how highly valued it was by the natives as they did not hesitate to donate the necessary funds.[54] One would naturally be inclined to think that such exercise of judicial function by the Man Mo Temple would have attracted much criticism from the colonial authorities. However, on the contrary, there is evidence to suggest that there was approval on the part of the English courts to have the temple to try civil cases, at least simple ones. Smith notes that magistrates were sending complainants to the temple to have their disputes dealt with.[55] In 1870, a coolie was tried in the temple and received a fine for breaking glass.[56] Moreover, Ting has found that the Supreme Court did not try any civil cases in 1848, and he therefore argues that this coincided with the establishment of the Man Mo Temple in 1847.[57]
The general attitude of the Chinese towards the English legal system during the first fifty years of colonial rule was filled with distrust and unfamiliarity. Even after the administration of the Man Mo Temple was vested in the Tung Wah Hospital (Donghuayiyuan) pursuant to the Man Mo Temple Ordinance, the Chinese still were not keen to have disputes resolved in the English courts.[58] Tsai describes how the committee of the Tung Wah Hospital gradually became a forum where justice was sought and done, and ‘the committee arbitrated civil and commercial disputes among the Chinese … wherever possible, the ordinary Chinese sought to avoid the British magistrate’s court, whose laws and language they did not understand.’[59]Sinn discusses an insurance dispute that was handled by the committee in 1873.[60] The North China Insurance Company took a case to the committee claiming an insurance premium from the Kin-loong shop. Because the latter did not regard the decision of the committee as legally binding, the former had to institute formal proceedings in a court. The judge was confused as to the identity of the defendant. It was therefore easier for the Tung Wah committee to deal with the case ‘where people were familiar with each other as well as with their own modus operandi.’[61]
Regarding the judicial significance of the hospital, the Daily Press on 2 January 1873 commented: ‘it seems that there a vast number of disputes are settled.’[62] The influence that the Tung Wah Hospital had on the natives led to the Europeans viewing the hospital with wariness and qualms. The Daily Press in January 1878 reported that:
We have, time after time, exposed the pretensions of this body [the Tung Wah] and have endeavoured to impress upon the Government the impolicy (sic) of recognising (sic) the members of the Hospital Committee as such in any matters unconnected with that institution … Here we have an irresponsible body arrogating to itself all sorts of functions through the exercise of which it can render itself formidable alike to foreigners and natives … It is high time steps were taken to crush the pretensions of that Committee.[63]
In fact, there have been suggestions that the directorate of the Tung Wah committee acted as if they were Qing magistrates with the power to apply Chinese law and having jurisdiction over the natives. Lethbridge suggests:
… but by the late seventies, during the governorship of Sir John Pope Hennessy, the directorate did begin to act as though it had inherited the magisterial function of the departed ‘petty’ Mandarins and the trappings of the imperial Mandarinate. At the formal opening of the Hospital in 1872, the full committee, some 70 or 80 in number, were ‘all dressed in the Mandarin costume, some even with peacock’s feathers attached to their buttons’ …[64]
It is also important to note, says Cameron, that the committee members went to the Man Mo Temple each year during the spring and autumn festivals to carry out rituals as sacrifices to Confucius just as the magistrates of the imperial times did.[65] Isabella Bird, a traveller to Hong Kong in 1879, had this to say about the hospital:
The Tung-Wah hospital … was a charming Oriental sight, the grand, open-fronted room with its stone floor and many pillars, the superbly dressed directors and their blue-robed attendants, and the immense costumed crowd outside the gate in the sunshine, kept back by crimson-turbaned Sikh orderlies.[66]
Thus the Tung Wah Hospital, with such grandeur and impressiveness, has been likened to an imperial Chinese court (yamen).[67] But the colonial authorities, and in particular the officers of the formal courts of law, were not impressed. The Daily Press reported a case heard by a magistrate in 1875 in which a witness wanted to complain to the Tung Wah committee about being beaten by the prisoner. The presiding magistrate said:
why he should go to Tung Wah Hospital to complain, explaining to him that this was a British Colony, and the Tung Wah had no powers. This was a British Colony and the police station was the place to complain to. If he had been badly injured he would understand his going to the Tung Wah for cure, but to go there for the redress of a wrong was preposterous.[68]
C. THE CONTINUED UNFAMILIARITY WITH ENGLISH LAW – THE SWEARING OF OATHS
The use of dispute settlement processes by the Chinese based on their mediatory culture outside the formal court system is understandable. The English legal system, and the English language itself, were wholly foreign to the local inhabitants. James William Norton-Kyshe, Registrar of the Supreme Court of Hong Kong from 1895 to 1904, aptly raised the question as to ‘the fitness of English law for the Government of the Chinese.’[69] Sinn takes the view that English law was not suitable, even deficient.[70] Bickley, on the other hand, argues that the ‘corpus of court cases shows that in many cases Chinese people actively sought a decision by means of the British legal system in Hong Kong.’[71] Indeed, as time passed, it was not surprising to see more and more Chinese people making use of the court system provided by the colonial government. The reason is obvious, since only judgments given by the formal courts of law were legally recognized and binding. But the shift towards using English law was not smooth and not without mishap and difficulty. One of the most frequently encountered, and well documented, difficulties, for the Chinese as well as for the courts, was the making of oaths by Chinese witnesses when testifying in court. The cause of the difficulty is that there was no legal requirement for a witness to make an oath under imperial Chinese law. This is especially so as most disputes were settled in mediation. Hence, in order to satisfy such a requirement in an English court of law, the Chinese had to borrow some rituals commonly performed in temples and then label such rituals as Chinese ways of making oaths. The appendix to The Hong Kong Almanack and Directory for 1848 contains the following account of the way in which the Chinese had adapted to the English legal requirement:
… In Chinese courts of law and judgment, where the character of the people is fully understood, no oath whatever is administered to witnesses. In order, however, to meet the requirements of English law, an attempt has been made to introduce a species of Chinese oath in our various Courts. The first form practised here was that of cutting off a live cock’s or fowl’s head; a considerable perquisite was afforded to the Court-keepers by this system, who unscrupulously devoured the decapitated bodies. A cheap form of oath consists in breaking a basin into pieces, intending thereby to symbolize how anxious is the swearer, (?) (sic) that if he does not tell the truth, his body shall be unceremoniously smashed into its original dust … The forms of oaths at present in use is considerably cheaper in practice than either of the foregoing. Printed forms, on sheets of yellow paper about eight inches by six inches, are kept at hand by the interpreters. If the witness can write, he fills in the blank himself, or the interpreter will do it for him, to the effect that “so and so” is now in Court for “such and such a purpose,” that he will “speak the truth, the whole truth, and nothing but the truth” … the form finishes by simply stating that the “Divine heaven” or, as the Chinese understand it, “Court of heaven” witnesses this attestation … the paper … is then burnt by the flame of a lamp … This form of oaths (but on an extended scale) is said, however, to be practised in temples at Nanking [Nanjing] …[72]
The following contains accounts of the way in which each of these three modes of making an oath was used in real cases. The ‘cheapest’ mode of making an oath, that is, by burning a tiny piece of yellow paper (shaohuangzhi) had been used in the case of Chun Atee v You Tsoi. An elderly woman was sued for the failure to repay a debt borrowed in 1845. Her daughter, aged eighteen, promised to make the repayment. At the trial, the plaintiff was ‘burning a bit of joss paper and declaring that the girl defendant had assumed as her own her mother’s debt …’[73]
The swearing of an oath in the form of breaking a saucer into pieces was famously done in the divorce case of Matthyssons v Matthyssons which was tried before the House of Lords in 1846. A Chinese woman was called to testify, but she was reluctant to swear an oath. The following contains the exchange between Lord Brougham and the woman through an interpreter:
Lord Brougham inquired whether it was not required for her to break a saucer before she gave her evidence?
The interpreter said that she was very reluctant to be sworn a second time, and that her gods would be very angry with her.
Lord Brougham.-Tell her that her gods will punish us and not her, if anything wrong is done.
…
She ultimately consented to be sworn.
…
The female Chinese, whose name was Kowhan, was then called in and Lord Brougham desired the interpreter to tell her “that now she has been sworn in” (this was done with the formality of breaking the saucer)-“if she does not speak the truth, her gods will punish her.”[74]
Lastly, the method of chopping off a cock’s head (zaijitou) was used in the following account concerning the swearing of an affidavit:
According to an affidavit on record in the Supreme Court, oaths seem still at this period to have been administered according to native fashion. In one case, entitled “In the cause of Chung Assing,” there appears an affidavit, dated the 14th February, sworn to at Macao before Mr. Patrick Stewart, “a Commissioner for taking affidavits in the Supreme Court of Hongkong,” “by cutting off a cock’s head.” It is recorded that the first form of oath practised in Hongkong “was that of cutting off a live cock’s or fowl’s head,” but, judging from the records, this must have been in the earlier Police and other Courts, and it is doubtful if it was ever practised in the Supreme Court beyond the admission in evidence of affidavits which had been declared before Commissioners to take affidavits, of whom in the early days there were several besides the officers of the Court.[75]
The use of the three methods described above for the making of oaths no doubt attracted much attention and ridicule from the Europeans both locally in Hong Kong and abroad. But for the Chinese, such rituals were carried out seriously and solemnly. The burning of a small piece of yellow paper and the chopping of a cock’s head carried important ceremonial and religious meaning. They were often done during ceremonies and legal processes in the temples as they meant a direct connection to the deities. As to the reason why a cock is used, Ter Haar takes the view that ‘it was cheap to buy, and widely recognized as a symbol of life.’[76]
The initial meeting of English and Chinese laws and legal procedures in Hong Kong reflected sheer incompatibility between the two, and as a result, much friction and inconvenience was created for both the Europeans and the Chinese. As in the case of the swearing of oaths, we can see how the two different legal cultures clashed, and how the natives adapted and borrowed rituals which were normally found to be done in temples in order to be used in the English courts. To deal with the problem, Ordinance No. 15 of 1856 was passed on 22 August 1856.[77] One of the provisions of this law was to abolish the need for heathen witnesses to swear oaths unless required by the court. Norton-Kyshe notes that ‘if this Ordinance had been allowed, it would have done away with the farce of burning paper in relation to Chinese oaths (…)’.[78]For an unknown reason, the ordinance was disallowed a year later. However in 1860, the Ordinance to Amend the Law Relating to Jurors and Witnesses was passed.[79] Section 2 made it possible for non-Christians, who had to testify in court, to make a declaration in lieu of an oath. This ordinance effectively put an end to the Chinese having to make oaths in the forms of burning paper, cutting a cock’s head or smashing a saucer, which was incomprehensible, or even farcical, in the eyes of the Europeans.
V. Conclusion
In a very broad sense, the object of a Chinese judge is similar to that of an English judge in that both are trying to resolve disputes that came before them. But their approaches differ greatly, and it might be more suitable to construe them as having different aims in mind, the former being to foster an amicable settlement and the latter to decide who has the law on their side. In mid-nineteenth century Hong Kong, after the British had won the Opium Wars, the local Chinese in Hong Kong were exposed to a whole new legal culture that was difficult, if not impossible, to grasp. As discussed in this paper, even though English law courts were firmly established in the colony, the locals still went to the temples or their community leaders to seek a kind of justice that was familiar, and made sense, to them. The Man Mo Temple on Hollywood Road in Hong Kong was a prime site where justice was found and done. Seeking the powers of the deities, parties in conflict did not hesitate to bring their disputes before them. Even though in 1908 the administration of the Man Mo Temple was put in the hands of the Tung Wah Hospital, this did not result in the cases that would have gone to the temple ending up in the English law courts. But rather, the hospital inherited the judicial significance of the temple and slowly evolved to become a judicial centre in itself. What did this mean? At least in terms of Hong Kong being a Crown Colony, this meant that English law was not yet an institution that people turned to or relied on in times of dispute, conflict and trouble.
Slowly, as Hong Kong society progressed and modernized, the use of the English courts became more common and acceptable to the local Chinese inhabitants. The process was long and arduous which took several decades for the new legal culture to settle and sink in. However, it must also be borne in mind that not only the people to whom the new laws applied went through a process of adaptation; the new system itself had also adapted to the people. It thus went both ways. The swearing of oaths was one such example. It was a wholly new concept to the Chinese. In light of the difficulty the people had in trying to comply with such a requirement, the colonial government amended the law to allow a declaration to be made in lieu of an oath before testifying in court. This helped the people from having to do something which would be blasphemous to their gods, and at the same time maintaining the integrity of the system. This sort of accommodation created a necessary condition for the common law to flourish in Hong Kong.
Image by David Kwok ‘Man Mo Temple in Hong Kong’.
[1] David Kwok is reading for a DPhil in Socio-Legal Studies at the Centre for Socio-Legal Studies at the University of Oxford. He is interested in the interaction between law and religion in contexts including imperial Chinese and contemporary post-colonial Asian societies. He is supervised by Dr Fernanda Pirie ([email protected]).
[2]Albert H. Y. Chen, “Mediation, Litigation, and Justice: Confucian Reflections in a Modern Liberal Society,” in Confucianism for the Modern World, ed. Daniel A. Bell and Hahm Chaibong (Cambridge: Cambridge University Press, 2003), 265.
[3]Ibid., 267.
[4]Art. 111 of the Constitution (1982 amendment): Wang Jianping and Zhang Yongjin, “Review of Research on People’s Mediation since the Reform and Opening Up,” Journal of Anhui Vocational College of Police Officers 10, no. 3 (2011): 21.
[5] Stanley B. Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford: Stanford University Press, 1999), 219.
[6]In 1989, the State Council issued the Regulation on the Organization of People’s Mediation Committees; in 2002, the Supreme People’s Court (SPC) issued the Rules relating to Trial of Cases concerning Mediated Agreements arising out of People’s Mediation: Wang and Zhang, “Review of Research on People’s Mediation since the Reform and Opening Up,” 21.
[7] The People’s Mediation Law of the PRC, promulgated on 28 August 2010 and came into effect on 1 January 2011 by order no. 34 of the President of the PRC.
[8]Zhu Xinlin, “The People’s Mediation System: Decline and Regeneration-Based on the Analysis of the Amount of Dispute Solation from 1986 to 2009,” Henan Caijing Zhengfa Daxue Xuebao 132, no. 4 (2012): 175.
[9]Ibid.
[10] See Aaron Halegua, “Reforming the People’s Mediation System in Urban China,” in The Evolution of Law Reform in China: An Uncertain Path, ed. Stanley B. Lubman (Cheltenham: Edward Elgar Publishing, 2012), 607-642 for an analysis of the reasons for the decline of people’s mediation.
[11]Ma Xinfu and Song Ming, “People’s Mediation and Litigation in Modern Society,” Fazhiyu Shehui Fazhan 67, no. 1 (2006): 52.
[12]Zhang Hongxia, “Review of the Convergence of People’s Mediation and Civil Justice for a Period of 10 Years (2002-2012),” Journal of Southwest Jiaotong University (Social Sciences) 14, no. 4 (July 2013): 136.
[13] Sir Jack I. H. Jacob, The Fabric of English Civil Justice (London: Stevens & Sons, 1987), 9.
[14]Jones v National Coal Board [1957] 1 QB 55. The quoted extract comes from Michael Zander, Cases and Materials on the English Legal System, 4th ed. (London: Weidenfeld and Nicolson, 1984), 264-265.
[15] John H. Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003), 253. However, Alan Paterson has been able to show that, at least in the former House of Lords and thus in appeal cases, judges’ decisions are not only influenced by counsel’s submission in court, but decisions are rendered by a social process involving the interaction of judges with fellow judges, legal academics, and counsel in and out of court: Alan Paterson, The Law Lords (London: The MacMillan Press, 1982).
[16]Cited in Edmond Gabbay, The English Adversarial System (London: E&J Gabbay, 1990), 10-11.
[17]Burmah Oil Co. v Governor and Co. of the Bank of England [1977] 1 WLR 473; [1977] 1 All ER 461, cited in Jacob, The Fabric of English Civil Justice, 14.
[18] George Neilson, Trial by Combat (Glasgow: William Hodge & Co, 1890), 31.
[19] Ibid., 36-37.
[20] Another form of ancient trial is that of trial by ordeal, see Paul R. Hyams, “Trial by Ordeal: The Key to Proof in the Early Common Law,” in On the Laws and Customs of England, ed. Morris S. Arnold et al. (Chapel Hill: The University of North Carolina Press, 1981), 90-126. Wager of law was another ancient form of trial in which a party would ‘swear a precisely prescribed oath [and] produce a certain number of other persons, usually referred to as compurgators, to support his oath by making their own oaths:’ Stephan Landsman, “A Brief Survey of the Development of the Adversary System,” Ohio State Law Journal 44, (1983): 718.
[21]Zander, Cases and Materials on the English Legal System, 315.
[22] Final Report of the Committee on Supreme Court Practice and Procedure 1953, contained in Zander, Cases and Materials on the English Legal System, 317.
[23] Jenny McEwan, Evidence and the Adversarial Process: The Modern Law, 2nd ed. (Oxford: Hart Publishing, 1998), 9.
[24]Although the jury trial is somewhat a symbol of England criminal trial nowadays, civil trial had also used the jury system and a prime example is defamation cases.
[25] Jacob, The Fabric of English Civil Justice, 6; Frederick G. Kempin, Jr., Historical Introduction to Anglo-American Law in a Nutshell, 3rd ed. (St. Paul: West Publishing Co, 1990), 65.
[26]See John H. Langbein, “The Disappearance of Civil Trial in the United States,” Yale Law Journal 122, (2012-2013): 534 on a discussion of the illiteracy of English jurors in the medieval times.
[27] John H. Langbein, “Bifurcation and the Bench: The Influence of the Jury on English Conceptions of the Judiciary,” in Judges and Judging in the History of the Common Law and Civil Law: From Antiquity to Modern Times, ed. Paul Brand and Joshua Getzler (Cambridge: Cambridge University Press, 71.
[28] Francis Grigor, Sir John Fortescue’s Commendation of the Laws of England: The Translation into English of “De Laudibus Legum Angliæ,” (London: Sweet and Maxwell, 1917), 43.
[29] Australian Law Reform Commission, Review of the Adversarial System of Litigation: Rethinking the Federal Civil Litigation System, Issues Paper 20 (Sydney: ALRC, 1997), 10, citing Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (London: HMSO, 1996).
[30] S. H. Bailey et al., Smith, Bailey and Gunn on The Modern English Legal System, 4th ed. (London: Sweet & Maxwell, 2002), 1024.
[31] E. J. Eitel, Europe in China: The History of Hongkong From the Beginning to the Year 1882 (London: Luzac & Company, 1895), 164.
[32]Christopher Munn, Anglo-China: Chinese People and British Rule in Hong Kong 1841-1880 (Surrey: Curzon Press, 2001), 123.
[33]An Ordinance for the appointment and regulation of Native Chinese Peace Officers, Ordinance No. 13 of 1844, see A. J. Leach, The Ordinances of the Legislative Council of the Colony of HongKong, Commencing with the Year 1844 (Hong Kong: Noronha & Co., Government Printers, 1890), 1:50-51.
[34]Munn, Anglo-China, 123.
[35]An Ordinance to extend the duties of Chinese Tepos appointed under Ordinance No. 13 of 1844, Ordinance No. 3 of 1853.The preamble of this ordinance said: ‘Whereas disputes occasionally arise among the Chinese population of this Colony which might be more conveniently and amicably settled by the tepo, aided by the respectable Chinese inhabitants, than before an English tribunal; and whereas with a view to make the tepos of the several districts of the Colony more efficient, and to extend their usefulness, it is desirable that the voluntary fees now paid by Chinese householders for the support of the said tepos be made rateable and compulsory …’: Leach, The Ordinances of the Legislative Council of the Colony of HongKong, 1:279-280.
[36]Ibid., 281.
[37]Eitel, Europe in China, 166.
[38] Geoffrey Robley Sayer, Hong Kong 1841-1862: Birth, Adolescence and Coming of Age (Hong Kong: Hong Kong University Press, 1980), 103.
[39] G. B. Endacott, A Biographical Sketch-Book of Early Hong Kong (Singapore: Eastern Universities Press, 1962), 62.
[40] Ibid.
[41] Document No. 43, CO 129/2, extracts from a dispatch from Lord Stanley to Sir Henry Pottinger, no. 8, 3 June 1843, contained in G. B. Endacott, An Eastern Entrepôt: A Collection of Documents Illustrating The History of Hong Kong (London: Her Majesty’s Stationery Office, 1964), 257.
[42]An Ordinance to establish a Supreme Court of Judicature at Hongkong, Ordinance No. 15 of 1844.
[43] Leach, The Ordinances of the Legislative Council of the Colony of HongKong, 1:53.
[44]H. B., “The Districts of Hong Kong and the Name Kwan Tai Lo,” The China Review: Or, Notes and Queries on the Far East 1, (1873): 333. Si Wenjing was a wealthy businessman who ‘was operating a gambling establishment and brothels … built a theatre … [and] for a time he held the opium monopoly’ whereas Tancai was ‘formerly a foreman in the Government Dockyard at Singapore … [and] built some of Hong Kong’s most prestigious early buildings …’ Carl Smith, “The Emergence of a Chinese Elite in Hong Kong,” Journal of the Royal Asiatic Society Hong Kong Branch 11, (1971): 81, 87.
[45]Munn, Anglo-China, 121.
[46]Eitel, Europe in China, 282. Eitel was the Inspector of Schools from 1878 to 1897: G. C. Hamilton, Government Departments in Hong Kong 1841-1969 (Hong Kong: Government Press, 1969), 37.
[47] James Hayes, The Hong Kong Region 1850-1911: Institutions and Leadership in Town and Countryside (Hamden, Connecticut: Archon, 1977), 65.
[48] Elizabeth Sinn, Power and Charity: The Early History of the Tung Wah Hospital, Hong Kong (Hong Kong: Oxford University Press, 1989), 16.
[49] John M. Carroll, Edge of Empires: Chinese Elites and British Colonials in Hong Kong (London: Harvard University Press, 2005), 32, 76.
[50] Jung-Fang Tsai, Hong Kong in Chinese History: Community and Social Unrest in the British Colony, 1842-1913 (New York: Columbia University Press, 1993), 50.
[51]China Mail, March 1, 1893 and March 2, 1893, contained in David Faure, ed, A Documentary History of Hong Kong: Society (Hong Kong: Hong Kong University Press, 1997), 61.
[52] Chan Wai Kwan, The Making of Hong Kong Society: Three Studies of Class Formation in Early Hong Kong (Oxford: Clarendon Press, 1991), 76.
[53] Ibid.
[54] Joseph Sun-Pao Ting, “Early Chinese Community in Hong Kong 1841-1870” (PhD thesis, University of Hong Kong, 1988), 243.
[55] Carl T. Smith, “Notes on Tung Wah Hospital, Hong Kong,” Journal of the Royal Asiatic Society Hong Kong Branch 16, (1976): 275.
[56] Ibid.
[57]Ting, “Early Chinese Community in Hong Kong 1841-1870,” 243.
[58]Man Mo Temple Ordinance, Ordinance No. 10 of 1908.
[59] Tsai, Hong Kong in Chinese History, 69.
[60]Sinn, Power and Charity, 97.
[61] Ibid.
[62] Contained in Smith, “Notes on Tung Wah Hospital, Hong Kong,” 275.
[63] Chan, The Making of Hong Kong Society, 126.
[64] Henry Lethbridge, Hong Kong: Stability and Change: A Collection of Essays (Hong Kong: Oxford University Press, 1978), 61 quoting China Mail, February 14, 1872.
[65] Nigel Cameron, An Illustrated History of Hong Kong (Hong Kong: Oxford University Press, 1991), 106.
[66] Tsai, Hong Kong in Chinese History, 70.
[67] Ibid.
[68] Daily Press, October 22, 1875 contained in Smith, “Notes on Tung Wah Hospital, Hong Kong,” 276.
[69] James William Norton-Kyshe, The History of The Laws and Courts of HongKong (Hong Kong: Noronha and Company, 1898), 1:viii.
[70]Sinn, Power and Charity, 97.
[71] Verner Bickley, “Differing Perceptions of Social Reality in Dr Stewart’s Court,” in A Magistrate’s Court in Nineteenth Century Hong Kong: Court in Time, 2nd ed., ed. Gillian Bickley (Hong Kong: Proverse Hong Kong, 2009), 74.
[72] See the appendix to The Hong Kong Almanack and Directory for 1848 contained in Norton-Kyshe, The History of The Laws and Courts of HongKong, 1:312-314.
[73] Norton-Kyshe, The History of The Laws and Courts of HongKong, 1:307.
[74]Ibid., 99-100.
[75]Ibid., 296.
[76]Barend J. Ter Haar, Ritual and Mythology of the Chinese Triads: Creating an Identity (Leiden: Brill, 1998), 183.
[77]An Ordinance for amending the Law of Evidence and Trial by Jury, Ordinance No. 15 of 1856.
[78] Norton-Kyshe, The History of The Laws and Courts of HongKong, 1:401.
[79]Ordinance No. 2 of 1860.
