Institute of East Asian Studies, University of California, Berkeley

Chapter Title: A Ruling Idea of the Time? The Rule of Law in Pre- and Post-1997 Hong
Kong
Chapter Author(s): CAROL A. G. JONES

Book Title: From a British to a Chinese Colony?

Book Subtitle: Hong Kong before and after the 1997 Handover
Book Editor(s): Gary Chi-hung Luk
Published by: Institute of East Asian Studies, University of California, Berkeley. (2017)
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THREE

A Ruling Idea of the Time? The Rule of

Law in Pre- and Post-1997 Hong Kong

CAROL A. G. JONES

Introduction: In the Beginning

This chapter explores the role played by the ideology of the rule of law in
British rule in Hong Kong, especially in the resistance to what many re-
gard as Mainland China’s “recolonization” of the territory since 1997 (see
Gary Chi-hung Luk’s introduction for a clarification of the concept). Early
British colonial policy in Hong Kong was that its “native people” would
aspire to equality with European civilizations by adopting the values, in-
stitutions, and habits of the British way of life. Central to this conception
of colonization was that the colonized people would enjoy all the civil,
social, economic, and religious liberties of England. The rule of law would
attach the Chinese to colonial rule, securing the hearts, minds, and souls
of the local population, and (ideally) their allegiance to the British crown.
They would be impressed by “the protection of equal laws, and, in a word,
all the best fruits of science and civilization transplanted direct from the
European headquarters.”1 Although allegiance to the British crown was
never fully secured, by the time the British left Hong Kong in 1997, they
had indeed succeeded in (re)attaching the local population to the rule of
law, so much so that in the succeeding years, it was to prove an intractable
obstacle to rule by the People’s Republic of China (PRC).
From the beginning, the British colonial administration deployed a wide
variety of administrative and executive measures in tandem with legisla-
tive and judge-made laws to control the Hong Kong Chinese population.
This duality was to become a leitmotif of British rule, representing what
Christopher Munn calls “a readiness by the government to circumvent

1
Davis to Stanley, December 21, 1843, CO 129/4, 278, cited by Christopher Munn,
“‘Scratching with a Rattan,’” 232.

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The Rule of Law in Pre- and Post-1997 Hong Kong 113

legal formalities.”2 Bringing the rule of law to Hong Kong was central to
Britain’s “civilizing mission,” part of the “white man’s burden.” Colonial
rule was founded on a discourse of bringing light out of darkness, or-
der out of disorder, justice and stability out of injustice and chaos. When
the Hong Kong authorities strayed too far from these promises, there was
always the backstop of the Colonial Office in London and British Mem-
bers of Parliament who, ever susceptible to pressure from the UK press
and the UK electorate, sometimes acted to rein in the more egregious ex-
cesses of colonial rule, making the Hong Kong administration somewhat
accountable to a distant democracy. Similarly, the Privy Council in Lon-
don acted as a check on any wayward legal decisions of the Hong Kong
courts. These checks ceased in 1997 with Hong Kong’s “retrocession to
China,” when crucially the judges on the Privy Council were replaced by
political appointees of the National People’s Congress Standing Commit-
tee (NPCSC). However, by this time Hongkongers had become so firmly
attached to “English” rule of law that they themselves took over the task
of defending it against the PRC’s depredations.

The Early Years of British Hong Kong

When Hong Kong’s first criminal court opened in March 1844, Governor
Henry Pottinger (r. 1841–1844) was at pains to impress upon the jury that:

In all cases where you have doubts, it is a wise and humane principle of
the law to give the advantage of those doubts to the accused, and our ob-
servance of this rule is more especially necessary when it is remembered
that he can have no counsel to plead for him. . . . I can at least promise
that I sit here to exercise the most rigid impartiality as well as to temper
justice with mercy.3

In 1844, that “great adjunct of civilization,” the Supreme Court, was

opened, its first sessions being held under Chief Justice John Hulme.4 The
attorney general, Paul Sterling, used the occasion to reiterate the message
that “English laws were not the laws of vengeance, but were intended to
protect the innocent by the punishment of guilt, not to punish guilt by
mere vindictive feelings.”5 Hulme added that, “[a]s inhabitants of a British
Colony, one of the greatest privileges you enjoy is the right to a due and
even-handed administration of the English laws, and I am satisfied that

2
Christopher Munn, Anglo-China, 125.
3
James William Norton-Kyshe, History of the Laws and Courts of Hong Kong, 65.
4
James William Norton-Kyshe, History of the Laws and Courts of Hong Kong, 59.
5
James William Norton-Kyshe, History of the Laws and Courts of Hong Kong, 65.

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114 Carol A. G. Jones

the more you become acquainted with these Laws, the more you will learn
to love and respect them.”6
Within a very short time, however, the Supreme Court became “notori-
ous as a tool for extortion and malicious prosecutions, as a dispenser of
unsafe verdicts and unjust sentences.”7 In the 1850s, Governor John Bow-
ring (r. 1854–1859) allowed many serious cases to be brought before the
lowest level of criminal court, the magistrates’ court, and from this point
onward it was in the magistrates’ courts that the Chinese most directly ex-
perienced the power of colonial rule.8 The chief magistrate, William Caine,
came into contact with the Chinese more often than any other officer of
government except for the police. For the majority of the Chinese, he was
the face of British authority, and reports show that they commonly mis-
took him for the Hong Kong governor.9 His regime “came to personify all
the brutality, corruption, and extravagance of the old colonial system,”
and by the mid-1850s his magistracy was the clearest and most dramatic
symbol of colonial power, of its “capriciousness and brutality.”10 Caine’s
reign epitomized the shallowness of those early, lofty “rule of law” prom-
ises. His regime in the courts became “an overture in which many of the
themes that dominated the succeeding few decades were played out: of a
society systematically divided by race; of rule by selective collaboration
rather than broad co-operation; of executive action supplanting due pro-
cess of law; of a regime that spoke of inclusion and civilization but used
the methods of a government of occupation.”11
The currency of rule of law as an ideology was further undermined by
the government’s extensive use of administrative (as opposed to legisla-
tive) powers to impose control over the population. Early administrative
measures included repressive controls on movement within the colony,
such as the “light and pass laws,” racial segregation, residential exclusion,
and regulation of travel back and forth to the Mainland.12 Most of these
discriminatory measures were fueled by a moral panic among an insecure
European elite, which blamed the high level of crime in the colony on the
Chinese. Historically, downplaying the role of the Chinese elites in main-

6
Christopher Munn, “‘Scratching with a Rattan,’” 233.
7
Christopher Munn, Anglo-China, 162.
8
Bowring also sought permission from London to allow Chinese persons to enter the
legal profession, with a view toward making them magistrates.
9
Christopher Munn, Anglo-China, 114.
10
Christopher Munn, “‘Scratching with a Rattan,’” 213.
11
Christopher Munn, “‘Scratching with a Rattan,’” 238.
12
Under the light and pass laws, the Chinese were prohibited to be outdoors at night
without an official pass and a lantern. For further details, see Peter Wesley-Smith, “Anti-
Chinese Legislation in Hong Kong,” 131–132.

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The Rule of Law in Pre- and Post-1997 Hong Kong 115

taining the social stability of colonial society has also created the impres-
sion that where stability did exist, this was entirely due to the British, and,
order having been brought out of chaos, “the credit naturally went to the
administrators.”13

Years of Turmoil: Before World War II

The retreat from the promise of rule of law continued in the late nineteenth
and early twentieth centuries. Between the 1880s and World War II (1939–
1945), Hong Kong saw some of its worst civil unrest, which stemmed
from large-scale labor disputes, anti-foreign campaigns in China, and the
Republican Revolution of 1911. Throughout this period, the courts and
the legal profession invariably associated themselves with the status quo.
The exception was John Smale, chief justice in the 1860s and 1870s, who
clashed with Governor Richard MacDonnell (r. 1866–1872) over a num-
ber of social justice issues. MacDonnell took the view that the “native”
Chinese did not require due process protections of English law, arguing
that “I have become daily more convinced of the unfitness of much of
our criminal procedure to the circumstances in which we find ourselves.
The hands of the police are tied and their utility often impaired by the
necessary adherence of our courts to rules which, however well fitted to
the place which gave them birth, have little practical value here.”14 How-
ever, MacDonnell’s successor, John Pope Hennessy (r. 1877–1883), arrived
in Hong Kong with a mandate to instantiate more inclusive policies on
law and order. These were, as Kate Lowe and Eugene McLaughlin point
out, an effort to obtain “the active consent of native populations in order
to secure the legitimacy of imperial governance.” Lowe and McLaughlin
continue:

Hence his [Hennessy’s] determination to make clear that it was the duty
of government to “hold the balance evenly between all men” instead of
encouraging particular interests. . . . The most blatant inequities occurred
in the sphere of criminal justice policies. He believed that it was of vital
importance that all sections of the community have faith in the fairness of
the criminal justice system and that governance was premised on the rule
of law rather than the parochial interests of British colonists.15

13
Chan Wai Kwan, The Making of Hong Kong Society, 2.
14
MacDonnell to Kimberley, April 1872, CO 129, cited in Kate Lowe and Eugene McLaugh-
lin, “An ‘El Dorado of Riches and a Place of Unpunished Crime.’”
15
Kate Lowe and Eugene McLaughlin, “An ‘El Dorado of Riches and a Place of Unpun-
ished Crime.’”

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116 Carol A. G. Jones

However, Hennessy’s enlightened approach did not outlive his gov-

ernorship. His reforms were rolled back as soon as he stepped down,
leaving the European elite to retrench and regroup. For example, the
1903 Peak Reservation Ordinance and later laws related to Kowloon Tong
clearly embedded residential segregation into the cultural and geographi-
cal landscapes of the colony.16
Between the 1880s and 1930s, the interests of Chinese workers brought
them into direct conflict with both the European and the Chinese elites. The
law now became the principal means of suppressing political demonstra-
tions and subduing organized labor, while executive-administrative pow-
ers were deployed to deport political and labor activists. In 1886, the Peace
Preservation Ordinance was enacted. Based in part on British suppression
of the troubles in Ireland, the ordinance was to provide the template for all
future public order legislation, such as the Emergency (Principal) Regula-
tions Ordinance, a repressive measure passed in three minutes flat by the
anxious Legislative Council (LEGCO) during the 1922 Seamen’s Strike.
The 1920s and 1930s also saw an increase in the use of the powers of exec-
utive deportation and confidential banishment, enabling the government
to bypass the legal system and public hearings in cases where it wished
to expel political subversives and other “troublemakers.” These colonial
laws remained “on the books” not only for the duration of colonial rule
but after Hong Kong’s sovereignty transfer to the PRC in 1997, making
these legal and administrative measures of repression equally available to
Hong Kong’s new overlord.

The Cold War Period

As the foregoing suggests, the first hundred years of colonial rule tar-
nished the promise of an impartial, just, and fair legal system before which
all were equal. However, that promise was renewed following World War
II, when the international geopolitical climate favored decolonization, de-
mocratization, and racial equality. Hong Kong was to prove an exception-
al case. After Mao Zedong 毛澤東’s victory in Mainland China in 1949, the
colony became strategically important during the Cold War and, between
1949 and 1971, the rule of law was elevated to a dominant ideology in the
“West’s” battle against communism. This clash, however, also resulted in
the abrogation of rule of law principles as the Hong Kong government
strove to contain the various agents of subversion to avoid having the
Cold War “go hot” in the colony.

16
The ordinance allowed the governor to permit exceptions to this rule. Only one was
made, in favor of Robert Ho Tung 何東.

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The Rule of Law in Pre- and Post-1997 Hong Kong 117

With the victory of Mao, the geopolitics of Asia profoundly altered.

Hong Kong became part of the “Bamboo Curtain,” on the front line of the
“West’s” military and propaganda war against communism. The Mainland
itself was closed, making Hong Kong a key listening post, Asia’s “den of
spies,” and a hotbed for international intelligence activities.17 The United
States supported the clandestine espionage activities of the Kuomintang
(KMT, Nationalist Party) agents who used Hong Kong as a jumping-off
point for their sabotage raids on the PRC, as well as for their propaganda
war against the Chinese Communist Party (CCP). Mainland China also
had agents in Hong Kong, the Chinese Intelligence Service (CIS), collect-
ing intelligence and mobilizing local communist sympathizers in United
Front activities. The United States increased its presence too: the US Con-
sulate in Hong Kong became the largest in the world, bigger than many
US Embassies, its staff swollen by large numbers of intelligence officers
from various US agencies. As Richard Aldrich writes, “[d]uring the 1950s
and 1960s, both the State Department and the Pentagon considered Hong
Kong to be the single most important British overseas territory from the
point of view of intelligence-gathering.”18 The Soviet Union had a smaller
presence in Hong Kong but never ceased in its efforts to establish a more
substantial spy network. The British intelligence agencies (MI5 and MI6)
were also present, aided by the Hong Kong Police Special Branch. Be-
tween them, these “Cold War warriors” made Hong Kong a territory of
spies whose activities threatened to provoke PRC hostility.
At the same time, thousands of refugees fled China for Hong Kong,
among whom many were Communist and Nationalist supporters. The
government, concerned with how to prevent them from continuing the
Chinese civil war within the colony and with reining in the activities of
intelligence operatives, found an answer in the ideology of the rule of law.
This enabled it to “hold the ring” by claiming to treat all law-breakers
equally and impartially. Hong Kong now acquired a reputation as a terri-
tory of law. Seeking to prevent the colony from becoming a flashpoint that
might trigger PRC intervention, the government espoused a strategy of
even-handed neutrality in the application of law toward CCP and KMT
activities, as well as foreign intelligence agencies. For example, in 1951
the Hong Kong Police uncovered an unknown Chinese contact of the US
Consulate and detained him for intensive questioning.19 The United States
accused Governor Alexander Grantham (r. 1947–1957) of tolerating Bei-
jing’s extensive underground groups while being “intolerant of Taiwan’s

17
Bruce Gilley, “Ferment in Asia’s Den of Spies.”
18
Richard J. Aldrich, GCHQ, 151.
19
Richard J. Aldrich, The Hidden Hand, 306.

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118 Carol A. G. Jones

secret organizations using the colony as a springboard for operations into

mainland China.”20 The complaint fell on stony ground. Grantham reiter-
ated that the law was applied impartially, without fear or favor. By August
1951, some eight undercover operatives from Taiwan were in custody.
Fewer CIS agents appear to have been arrested, but they were probably
dealt with by legal, executive means such as confidential banishment. In
1949, the Hong Kong Police Special Branch did uncover several Chinese
communist agents during a surprise raid on a leading communist sup-
porter living in the colony. Their diaries and the documentation seized
painted “a revealing picture of the ruthless fervour, efficiency and cyni-
cism of the Chinese communists and provide abundant evidence that, far
from the CPC [CCP] being motivated by any special ‘Chinese’ factors, it
is strictly orthodox, confident, mature and at its highest level very well
organized.”21 By 1950, the communists were seen as the most serious sub-
versive threat. When local communist supporters “once or twice tried vio-
lent conclusions with this Government, their ring leaders were deported
to China.”22
Deportation, confidential banishment, and detention without trial now
became routine parts of the politicolegal system. The 1938 Sedition Ordi-
nance (amended in 1950) had already criminalized “words in speech or
print that raise discontent or disaffection amongst Her Majesty’s subjects
or inhabitants of the Colony or promote feeling of ill-will and hostility be-
tween different classes of the population in the Colony.”23 Such acts carried
a penalty of fine, imprisonment, or both. The 1949 Emergency Regulations
and the 1951 Control of Publication and Consolidation Ordinance “placed
the Hong Kong press under the rigid control of the government.”24 Ev-
ery newspaper had to submit a copy of every issue to the registrar for
inspection upon publication.25 The Hong Kong media operated in a “sort
of Cold War grey zone, where certain communist activities were tolerated
but rigidly confined by the colonial legal frame.”26 In 1952, the pro-CCP
newspaper Ta Kung Pao published reports accusing the government of re-
pressing a “comfort mission” from Mainland China for the victims of the

20
Richard J. Aldrich, The Hidden Hand, 311.
21
Ernest Bevin, March 1949, cited in Richard J. Aldrich, The Hidden Hand, 306.
22
Dispatch 1127, Grantham to Lennox-Boyd, June 25, 1956, cited in Steve Tsang, A Docu-
mentary History of Hong Kong, 289–290.
23
Hong Kong Government, 1938 Sedition Ordinance, no. 13, section 3; Sedition Amend-
ment Ordinance, no. 28.
24
Yan Lu, “Limits to Propaganda,” 100–101.
25
Yan Lu, “Limits to Propaganda,” 101.
26
Yan Lu, “Limits to Propaganda,” 95.

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The Rule of Law in Pre- and Post-1997 Hong Kong 119

Tung Tau fire.27 Along with the Wen Wei Po, the leftist Ta Kung Pao was
prosecuted under the Sedition Ordinance. The editor and the owner of
the Ta Kung Pao were both fined and imprisoned, and the newspaper was
ordered to suspend publication for six months.28 In Mainland China, reac-
tion was immediate and threatening. In Guangdong Province, there was a
mass demonstration with a threat to British property. When Premier Zhou
Enlai 周恩來 demanded the withdrawal of the prosecution against the Ta
Kung Pao, the British government intervened to direct the courts to rescind
the sentence. Thus, superpower politics trumped Governor Grantham’s
much-vaunted adherence to the even-handed application of law.
Superpower politics also compromised the rule of law when the United
States put pressure on Hong Kong to interfere with the ordinary processes
of law during a 1949 China National Aviation Corporation (CNAC) in-
cident that involved seventy aircraft in Hong Kong claimed by both the
Nationalist and Communist governments.29 Fears over Washington’s reac-
tion led London to advise Governor Grantham to intervene directly in the
colony’s legal process. The governor was, as James T. H. Tang notes, “not
happy” with London’s decision, but there was little he could do.30
Direct intervention of this kind damaged the legitimacy of the British
Hong Kong government. Less conspicuous, and thus less likely to draw
public attention, was the use of executive powers of deportation and de-
tention without trial. The Deportation of Aliens Ordinance or the Emer-
gency [Principal] Regulations Ordinance allowed the authorities to deal
with “troublemakers” without being seen openly to compromise adher-
ence to the rule of law. They gave the Hong Kong governor the power to
order the deportation of persons deemed “undesirable,” usually on the
advice of the police or the “political advisor.” No courts or judges were
involved in this process. In the same way a number of left-wing cultural
workers and labor leaders were deported following the Tung Tau Riots of
1951 and the October 10 Riots of 1952. In 1955, when agents from Taiwan
attempted to assassinate the PRC premier Zhou Enlai by blowing up the
Kashmir Princess of Air India, forty-five KMT suspects were detained “for
a particularly long time” during the enquiry, thirteen of them for about a
year. Governor Grantham “repeatedly appealed to London for their early

27
For a fuller account of the Tung Tau Riots, see Carol A. G. Jones and Jon Vagg, Criminal
Justice in Hong Kong, 239–292.
28
Yan Lu, “Limits to Propaganda,” 108–109.
29
James T. H. Tang, “From Empire Defence to Imperial Retreat.” The CNAC incident
involved conflicting legal claims on airplanes in Hong Kong by the Mainland and Taiwan
governments.
30
James T. H. Tang, “From Empire Defence to Imperial Retreat,” 329–330.

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120 Carol A. G. Jones

release or deportation to Taiwan”; eventually thirty-two were deported by

sea on January 15, 1956, and thirteen others were deported in June 1956.31
The Emergency Regulations Ordinance, based on the 1922 Emergency
(Principal) Regulations Ordinance (re-enacted in 1949), was also used to
deport those involved in the 1956 Kowloon Riots. By 1956, however, the
PRC and Taiwan would no longer accept persons under deportation or-
ders from Hong Kong. The 1956 Emergency (Deportation and Detention)
Regulations therefore were passed allowing the detention without trial of
those whom it proved impossible to deport. Astonishingly, between 1956
and 1960, at least 32,258 persons were either deported or detained without
trial in lieu of deportation. At least a further 2,304 were put up for “confi-
dential banishment” under a separate procedure.32
The deportation and detention of “undesirables” without trial contin-
ued throughout the 1950s and 1960s. Because this practice operated be-
yond the radar of law and without the openness of public hearings, it
enabled the Hong Kong government to continue its public commitment
to the rule of law even while undercutting it. To counter criticism by the
International Commission of Jurists (usually referred to as “Justice”) and
to forestall Parliamentary comment, a new tribunal was introduced in
1962 to oversee the practice of detention in lieu of deportation. The gov-
ernor assured the Colonial Office that such measures were still necessary
as Cold War Hong Kong faced a “public danger” of sufficient gravity to
justify wide executive powers to detain. By 1966, London was sufficiently
concerned to order a review of the entire system. However, the proposed
overhaul never happened. Riots in 1966 and 1967 instead heralded a new
swathe of Emergency Regulations covering a wide range of communist
activities. Unlike ordinary laws, these regulations were not subjected to
LEGCO approval; they were brought into force by the simple act of be-
ing published in the government’s Gazette. Moreover, although the Hong
Kong administration was obliged to run proposed legislation past offi-
cials in London, it was under no such duty to do so with the regulations
published in the Gazette; whether Whitehall officials read all the gazetted
regulations is also doubtful. Fears of a backlash from Mainland China did
on occasion lead the governor of the time, David Trench (r. 1964–1971),

31
Steve Tsang, “Target Zhou Enlai.”
32
Committee of Review, Annual Reports 1959 and 1960; First Schedule and Second Sched-
ule, Memo, Chairman of Committee of Review to Colonial Secretary, January 24, 1961, HKRS
179-1-5 and HKRS 179-1-6. The schedules include the number of persons detained in the
Chatham Road Centre, including illegal immigrants, returned banishees, persons released
from prison on scheduled offenses and awaiting deportation, and persons awaiting the con-
fidential banishment procedure. For more details, see Carol A. G. Jones and Jon Vagg, Crimi-
nal Justice in Hong Kong, 375–408.

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The Rule of Law in Pre- and Post-1997 Hong Kong 121

to notify London of his intentions to invoke certain powers, such as sup-

pression of the communist press, but in general repressive measures were
introduced with minimal democratic or legal oversight.
Section 2(i) of the Emergency (Principal) Regulations gave the gover-
nor enormous discretionary power, stating that “on any occasion which
the Governor-in-Council may consider to be an occasion of emergency or
public danger, he may make any regulations whatsoever which he may
consider desirable in the public interest.” Unlike other colonies, there was
no requirement for an emergency in Hong Kong to be declared before
these powers were exercised. Among the Emergency Regulations issued
in 1967, two in particular stand out as stark denials of the rule of law.
Regulation 88 allowed for trial in camera, in other words, a closed trial
not open to the press or public. Regulation 31 allowed the colonial secre-
tary in Hong Kong to detain a person for up to a year without trial and
without reasons; on expiry, detention could be renewed (repeatedly) for a
further year. Under Regulation 31, fifty-two leftist leaders were detained
at the Victoria Road Detention Centre (the “White House”), many for over
a year, in solitary confinement, and without trial.33 Among these was the
secretary of the Hong Kong Chinese Reform Association, Choi Wei-hang
蔡渭衡, as well as Hong Kong film stars Fu Che 傅奇 and Shi Hui 石慧.
The failed attempts to deport them to Mainland China generated great
publicity and anti-British propaganda.34
The draconian nature of these measures led members of LEGCO to
accuse the government of enforcing not the rule of law but the “law of
the ruler,” a protest that in itself indicates that by this time some Hong
Kong people were measuring the government against its own ideology.
The Emergency Regulations were seen as a double-edged sword. Deemed
necessary due to the emergency posed by the riots, if used indiscrimi-
nately the regulations would “infringe on Hong Kong’s civil liberties—
our most cherished possession as a part of the free world.”35 The gov-
ernment responded that the regulations were a temporary response to
the riots and would be relaxed “as soon as things returned to normal.”36
But it is testimony to the pervasive nature of the government’s rule of
law ideology that LEGCO members saw the regulations as “alien to the
Common Law of England.” One spokesman hoped they would remain
“exceptional” powers and not acquire a permanent character as such leg-
33
Gary Ka-wai Cheung, Hong Kong’s Watershed.
34
In 2006, the South China Morning Post, the Apple Daily, and the Ming Pao all carried
reports on the role of the “White House” in 1967. On the White House, see “East South West
North.”
35
“Most Back New Emergency Laws,” Hong Kong Star, July 21, 1967.
36
See, for example, Woo Pak-chuen and Szeto Wai Wah, Hong Kong Star, July 21, 1967.

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122 Carol A. G. Jones

islation had in the past.37 In fact, many of the measures contained in the
Emergency Regulations were enshrined in the Public Order Ordinance of
1967. They, moreover, have still been deployed post-1997 to enforce con-
trols over public demonstrations; other “emergency” powers also found
their way into the Sedition Ordinance and the Immigration Ordinance.
Some regulations were gradually rescinded between 1968 and 1969, but
the most draconian, Regulation 31, was not discontinued until 1971, long
after the state of exception triggered by the riots had passed. Moreover,
the Emergency (Principal) Regulations Ordinance was never revoked.
Indeed, it was re-enacted by the government of the Hong Kong Special
Administrative Region (HKSAR) on July 1, 1997, and remains a feature of
post-British Hong Kong. The wide discretionary powers permitted under
section 2(i) have simply been transferred from the Hong Kong governor to
the ­HKSAR chief executive.

The Retrocession Years: 1984–1997

Throughout the British colonial period, those “exceptional” executive
powers ran in tandem with the ordinary legal system that still promised
to deliver rule of law ideals. As I have argued, the use of administrative
measures allowed the British to appear to adhere to their rule of law ideol-
ogy even while abrogating its principles. Moreover, the ideology seems
to have remained intact despite some glaring colonial anomalies. For ex-
ample, not until the 1990s, just prior to retrocession, was the lack of local-
ization in the legal profession properly addressed. English remained the
official language of the legal system even though 90 percent of those using
the courts spoke Cantonese; even qualification as a juror remained tied to
the ability to understand English. Taken together with the clear abroga-
tion of rule of law principles between 1967 and 1971, it seems remarkable
therefore that the public accepted the rhetoric of “even-handed applica-
tion of law” and the “high standards of British justice” associated with the
ideology of law.
How, then, did the rule of law achieve such popularity that by 2004 it
had become a key point in a charter of the territory’s “core values”? The
organizers of the Hong Kong Core Values Declaration of 2004 were “great-
ly disturbed by the increasing erosion of Hong Kong’s core values. . . . The
community is filled with a strong sense of helplessness and rising frus-
trations. . . . Our core values are being shaken. . . . The alarm has rung to
defend Hong Kong’s core values.”38 Communal symbols such as the rule

37
Albert Sanguinetti, Article in Hong Kong Star, July 21, 1967.
38
Ambrose Leung, “Push to Defend City’s Core Values,” South China Morning Post, June
7, 2004.

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The Rule of Law in Pre- and Post-1997 Hong Kong 123

of law were mobilized not just to uphold the rule of law but in defense of
Hong Kong’s local identity, with which it had become inextricably associ-
ated. This was an identity increasingly honed in opposition to the “other,”
that is, the Mainland.
For many Hong Kong people, “Mainlandization” represents the break-
down of order and lack of regard for law, rules, and the prevailing so-
cial norms; in other words, the law-abiding culture, beliefs, values, and
practices that have made Hong Kong successful. Belief in the rule of law
has become a means of distinguishing Hongkongers from Mainlanders, a
marker of their distinctive identity. At times of threat, such as destabiliza-
tion and measures designed to force reintegration with the “motherland,”
the rule of law has provided a common cultural symbol around which
Hongkongers rally to demonstrate their defiance, their cohesion, and their
social solidarity. This resistance is evident in massive street demonstra-
tions as well as a multitude of alternative cultural formats that mobilize
people around law, freedom, justice, and rights. A myriad of social groups
participate, from schoolchildren and university students to the elderly, en-
vironmental campaigners, welfare workers, religious groups, social activ-
ists, trade unionists, and grassroots community organization members.
Despite the fissures between them, all unite around the need to protect the
rule of law, the last bulwark against “Mainlandization.”
Where did this belief in the rule of law come from? Its roots lie partly
in British colonial propaganda but also in the 1970s, when a Hong Kong
government faced with riots at home and the threat of “Red China” on its
doorstep developed policies designed to win over the hearts and minds
of the population, including public housing, mass education, health pro-
grams, crackdown on corruption, and creating “clean” government. The
elimination of corruption was key, since it reinforced the government’s
ideological message that Hong Kong was now a society “open to talents,”
where merit and hard work would reap rewards for all. The days of nar-
row privilege, nepotism, and cronyism were over. Central to this message
was the rule of law. Maintaining a level playing field required the even-
handed application of the law to everyone, even the wealthy and the pow-
erful; no one was to be above the law. Hong Kong people were granted
improved legal rights as well as the means to enforce them through a vast-
ly increased legal aid fund. The government could be brought to book by
ordinary citizens exercizing these rights, either through the courts, newly
created tribunals, or various new complaint procedures. Still not political-
ly accountable because still undemocratic, the government nevertheless
became vastly more accountable to the law.39 This mix of welfare colonial-

39
Carol A. G. Jones, “Politics Postponed.”

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124 Carol A. G. Jones

ism and legal accountability repaired much of the colonial regime’s weak
legitimacy.
However, this rule-by-legality strategy came unstuck in 1984, with the
signing of the Sino-British Joint Declaration on the handover of Hong
Kong’s sovereignty in 1997. The exclusion of Hong Kong people from
this decision over their future underlined the fact that legal rights could
only ever be second order rights: it was the rulers, not the ruled, who
made the really important political decisions, against which there was no
channel of challenge. In subsequent years, therefore, the calls for democ-
racy grew. The outcry was further fueled by the events of June 4, 1989,
which summed up the difference between Hong Kong, a “city of law,”
and Beijing, a city of unbridled political power. In Beijing and other cit-
ies in Mainland China, pro-democracy protestors were killed or detained,
often in secret; others were later executed. In Hong Kong, by contrast, a
march of over a million people proceeded peacefully with minimum po-
lice intervention. The contrast handed the government an unlooked-for
propaganda coup.
The fear of capital flight from Hong Kong as 1997 approached, as well
as mass out-migration, prompted the government to embark on several
confidence-boosting policies designed to allay fears that the retrocession
would see the end of Hong Kong people’s rights and freedoms. One of
these was a Bill of Rights (BOR) introduced in 1990.40 The BOR incorpo-
rated into domestic law the rights contained in the International Covenant
on Civil and Political Rights.41 This stipulated a presumption of innocence
in criminal law, equality before the law, freedom from arbitrary arrest and
detention, the right to be informed (in a language the accused understood)
of the reasons for the arrest and the charges laid, prompt appearance be-
fore a judge, trial in open court without delay and with legal representa-
tion, the right to cross-examine witnesses, and the right to request an ap-
peal. Other articles provided for liberty of movement, freedom of thought
and religion, as well as freedom of conscience, freedom of expression, and
freedom of association.
Between 1991 and 1997, the BOR became a formidable weapon in the
hands of human rights lawyers. Together with the power of judicial re-
view, the law provided a powerful means to bring the government and
its officials to account. An independent judiciary also finally began to
fulfill its promise as a check on the abuse of power. Law lived up to its

40
Laws of Hong Kong, Hong Kong Bill of Rights Ordinance, cap 383, June 8, 1991.
41
The 1984 Sino-British Joint Declaration promised that the existing provisions of the In-
ternational Covenant on Civil and Political Rights and the Covenant on Economic, Social and
Cultural Rights would remain in force after 1997. Article 39 of the Basic Law confirms this.

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The Rule of Law in Pre- and Post-1997 Hong Kong 125

ideological rhetoric: it bestowed rights on even the lowliest (and often the
most unpopular) groups in society, and gave them a voice sometimes so
powerful that it defeated the government. Defending the rule of law be-
came a focal point for local culture. The view that Mainland China would
try to whittle away Hong Kong’s rights and freedoms was a constant
theme in public discourse, kept alive by arguments over issues such as
the composition of the Court of Final Appeal and the Basic Law Commit-
tee. Throughout the decade and a half before 1997, local people became
hypervigilant for any sign of a Mainland incursion into the rule of law. In
1997, for example, when a PRC general surnamed Zhao attempted to cross
the border into Hong Kong without any proper papers, some immigration
officers in Hong Kong complained to a local radio phone-in program that
“no-one was above the law” and that “even the Governor had to have the
right papers.” Justice Pao (Bao qingtian 包青天), a fictional television show
featuring a judge in imperial China who dispensed justice without fear
or favor, was in such popular demand that it was shown twice nightly on
two television channels. Faced with examples of Hong Kong’s rich and
powerful flouting the rules, students donned T-shirts bearing the slogan,
“no matter how high you are, no-one is above the law.”
This tide of belief in the rule of law rose as confrontation with the PRC
intensified after Christopher Patten’s appointment as the last governor in
1992. Public confidence in the longevity of Hong Kong’s political institu-
tions fell. The sight of the commercial elites rapidly switching allegiance
to Beijing made it clear that the elites could not be relied upon to defend
Hong Kong. Fears surfaced about the future politicization of the civil ser-
vice. The row with Mainland China over Patten’s reforms scuppered the
promised LEGCO “through train”; it would now be replaced by Mainland
China’s Provisional Legislative Council. The protective barriers around
Hong Kong’s “way of life” were now more fragile. The rule of law filled
this lacuna, aided by Patten’s constant reiteration of the centrality of the
rule of law, representative government, free speech, independent courts,
free trade, and a clean police force to Hong Kong’s success.42 In a remark-
able series of speeches in the run-up to 1997, Patten argued that the rule
of law was essential to Hong Kong’s continued prosperity, stability, and
freedom, inextricably linked to its capitalist system, freedoms, values, and
“way of life.”43 It guaranteed “stability and our fundamental freedoms”;
it was the “glue by which millions of people of different ambitions, abili-
ties and temperament may be joined together.” It “championed the rights

42
Institute of International Studies, University of California, Berkeley, Conversations with
History series, “Conversation with Chris Patten.”
43
Christopher Patten, Today’s Success, Tomorrow’s Challenges.

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126 Carol A. G. Jones

of the individual against the collective, the rights of the weak against the
mighty, the individual against the state, the vulnerable against the pow-
erful.” It went “hand in hand with clean and competent government.” It
was the “bedrock of your way of life.” It guaranteed fair and equitable
treatment for everyone, kept crime and corruption under unremitting at-
tack, and produced “a safe and secure environment for the individual,
for families and for businesses to flourish.” Hong Kong was a “decent,
open, plural society living in freedom under the rule of law.” No one
was above the law, “no politician, no business leader, no Governor”; the
law served everyone. The rule of law was the community’s “most prized
possession.”44
British rule thus ended as it had begun, with a rhetorical flourish about
the rule of law. By 1997, however, unlike 1844, the public had come to
expect the law to live up to its claims. Successful BOR and judicial re-
view cases had raised expectations; Patten himself had conveyed the mes-
sage that Hong Kong’s survival depended upon the rule of law. All hopes
were pinned on what elsewhere I have called the “wall of law” (the BOR,
the Sino-­British Joint Declaration, and the Basic Law) surrounding Hong
Kong after 1997.45 The rule of law had become the ruling idea of the time.

1997–2014: The Law Wars

When Hongkongers talk of their “way of life,” one of the first things they
mention is the rule of law. Since 1997, they have repeatedly risked the
wrath of Beijing to defend it. Even minor everyday infractions of social
norms by Mainland visitors are seized upon as the degradation of Hong
Kong’s “way of life,” the “breakdown of the rule of law,” the fear that the
“looming disorder” of life in the Mainland is seeping into Hong Kong.46
Some writers have likened the Mainland’s official attempts to encourage,
entice, and pressure Hongkongers to forfeit their history and culture for a
Mainland identity to the process of recolonization.47 Hongkongers’ resis-
tance to these endeavors is a far cry from Mainland leaders’ assumption

44
For an analysis of Patten’s speeches, see John Flowerdew, The Final Years of British Hong
Kong.
45
See Carol A. G. Jones, Lost in China.
46
It is perceived that “Mainlandization” encompasses Hong Kong’s increased economic
dependence on China; the undermining of its core freedoms, rights, and values; PRC inter-
ference with the rule of law, the subordination of Hong Kong culture, the weakening of its
political institutions; and the deterioration of everyday life. See Sonny Shiu-Hing Lo, “The
Mainlandization and Recolonization of Hong Kong.”
47
See, for example, Law Wing-Wah, “The Accommodation and Resistance to the Decolo-
nisation”; William P. MacNeil, “Enjoy Your Rights!”; Stephen Vines, Hong Kong: China’s New
Colony.

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The Rule of Law in Pre- and Post-1997 Hong Kong 127

that the Hong Kong people would eagerly embrace reintegration, as “lost
children” returning to the “motherland.”
Since 1997, public disenchantment with Hong Kong’s political class has
accelerated. The promise made on July 1, 1997 by the first chief executive,
Tung Chee-hwa 董建華 (r. 1997–2005), that “Hong Kong people would rule
Hong Kong” and for the first time be “masters of our own destiny,” turned
out to be hollow. In the immediate aftermath of the Handover, the Hong
Kong government consisted of a Beijing-backed chief executive and his
tycoon supporters. Paradoxically for a “postcolonial” government, it was
more socially and politically distant from the people it governed than the
old British regime, whose implicit lack of legitimacy meant that it had
always had to strive hard for grassroots support.48
Law and lawyers have played a pivotal role in the fight to define and
defend Hong Kong’s way of life since 1997. As Mainland legal scholars
have sought to impose a highly statist, literal, and “law and order” inter-
pretation of law on Hong Kong, the liberal lawyers of the Common Law
tradition have sought to moderate state power, defend judicial indepen-
dence, and engage with civil society in mobilizations against attacks on
Hongkongers’ rights and freedoms. In 1999, the first serious constitutional
crisis arose when the case Ng Ka-ling v Director of Immigration reached the
courts.49 In 1997, a test case on the right of abode in Hong Kong had come
before the court of appeal. It held that, under the Basic Law, all children of
Hong Kong citizens born on the Mainland had the right of abode in Hong
Kong. The HKSAR government challenged the judgment, claiming that
it would open the floodgates to at least 1.67 million Mainland migrants,
overwhelming Hong Kong’s health, housing, transportation, and educa-
tional infrastructure, and pushing the population up to 10 million by 2011.
It was enough to “make any normal person agree that the judges were out
of their minds to let those people in.”50 Legal proceedings culminated in
January 1999, when the Court of Final Appeal (CFA) declared that the chil-
dren were entitled to the right of abode, whether they were the illegitimate
or legitimate offspring of Hong Kong residents, and whether or not they
were born before their parents had obtained the right of abode in Hong
Kong. One commentator observed that the CFA’s judgment “is almost a

48
Opinion polls showed that by the early 2000s, the popularity of Chief Executive Tung
Chee-hwa had fallen below that of the last governor, Christopher Patten.
49
Ng Ka Ling and The Director of Immigration (FACV No. 14 of 1998); Ng Ka Ling v Director
of Immigration (No. 2); Tsui Kuen Nang v The Director of Immigration, The Director of Immigration
v Cheung Lai Wah, and Chan Kam Nga v The Director of Immigration.
50
Jonathan Fenby, Dealing with the Dragon, 159.

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128 Carol A. G. Jones

perfect demonstration of the rule of law.”51 The South China Morning Post
called it “the best shot in the arm for the rule of law since the handover.”52
This view was shared neither by Beijing nor the Hong Kong govern-
ment, which plunged the territory into a constitutional crisis by inviting
the National People’s Congress Standing Committee to issue an interpre-
tation of the Basic Law on the matter. The legal profession, in an unprec-
edented show of political backbone, organized a silent march whose sym-
bolism was not lost on the Hong Kong public. The pro-Beijing fraction
of the profession lambasted the judiciary; several Mainland legal experts
backed the government’s move, leaving no one in any doubt as to Bei-
jing’s view. The law, and who had a right to determine it, became part of a
politically charged conflict over who ruled Hong Kong.
Politics won. Ordered by the NPCSC to “revisit” its judgment, the CFA
was forced to backtrack on its assumption that, in certain matters, it had
the power to interpret the Basic Law. The shot in the arm for the rule of
law became a devastating wound. Commentators spoke of the “death of
the rule of law”; WikiLeaks later revealed that the judges on the CFA had
contemplated resigning en masse over the case.53 According to one report,
the fact that the “surgery” performed by the NPCSC proved so painful
was seen by Beijing as a necessary evil: “If there is a lot of pain, so be it. At
least there will be no more attempts at independence.”54
In the following years, the government sought three further interpre-
tations of the Basic Law from the NPCSC, leading some to rename the
Court of Final Appeal the “Court of Semi-Final Appeal.” One newspaper
carried a cartoon showing Tung Chee-hwa jumping up and down over
the prostrate body of the rule of law. The Apple Daily reported that Hong
Kong citizens’ approval rating of PRC rule had dropped drastically from
60 percent in 1998 to 42 percent after the CFA case.55 The law had become
a principal political battleground of the “retrocession” and “recoloniza-
tion,” a proxy war over sovereign rule. In 1999, further fears of Mainland
interference in Hong Kong’s due process of law were aroused when a PRC
court tried and executed a Hong Kong criminal (“Big Spender”) for crimes
committed in Hong Kong itself. A similar outcome occurred in another

51
Yash Ghai, “Abode Verdict a Resounding Victory for the Rule of Law.”
52
“Two Systems.”
53
Gary Cheung and C. Ip, “All City’s Top Judges ‘Considered Quitting.’” The US cable
from Cunningham to the State Department was dated August 28, 2007.
54
“NPC Will Have ‘Final Say’ on Basic Law.”
55
“Citizens’ Approval Rating for Chinese Rule Drastically Drops.” The Apple Daily com-
missioned the Hong Kong Institute of Asia-Pacific Studies, Chinese University of Hong
Kong to conduct the poll.

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The Rule of Law in Pre- and Post-1997 Hong Kong 129

case (i.e., the Telford Garden’s case). Though in both cases the expected
procedure would have been extradition and trial before courts in Hong
Kong, it transpired that no rendition agreement existed between the two
jurisdictions. As the media pointed out, perhaps more worrying was the
fact that Hong Kong’s Department of Justice made no effort to bring the
accused back to Hong Kong for trial. The spectacle of a Hong Kong crimi-
nal being publicly sentenced to execution in Mainland China sent a pow-
erful message as to who had the right to rule.
The year 1999 was, therefore, a bad one for the ideology of the rule of
law, an ideology long regarded by communism as a “bourgeois tool” to
mask inequality. The principle of equality before the law was again spec-
tacularly breached when the HKSAR’s secretary for justice declined to
prosecute Sally Aw Sian 胡仙 for conspiracy to defraud. Aw was chair of
the Sing Tao publishing group, a member of the PRC’s Chinese People’s
Consultative Conference, and a friend of the then chief executive, Tung
Chee-hwa.56 Her two co-conspirators were convicted. A LEGCO “No con-
fidence” vote in the secretary for justice tabled by legislative councilor
Margaret Ng Ngoi-yee 吳靄儀 was only narrowly defeated. There was also
the conspicuous failure to prosecute the Xinhua News Agency for breach-
ing the Personal Data (Privacy) Ordinance, despite the complainant (Em-
ily Lau Wai-hing 劉慧卿), then a legislative councilor, producing clear evi-
dence that it had done so.
Another significant attack on (and public defense of) the rule of law oc-
curred in late 2002, when the government issued a consultation paper on
anti-subversion legislation under Article 23 of the Basic Law. The Beijing
government required the HKSAR to enact laws to “prohibit any act of
treason, secession, sedition, subversion against the Central People’s Gov-
ernment, or theft of state secrets, to prohibit foreign political organiza-
tions or bodies from conducting political activities in the Region [Hong
Kong], and to prohibit political organizations or bodies of the Region from
establishing ties with foreign organizations or bodies.” Opinion polls in
December 2002 indicated that 54 percent of Hongkongers opposed the
Article 23 legislation.57 Most of the offenses were already covered by exist-
ing laws. There were also significant misgivings about Beijing’s definition
of subversion, sedition, and secession. Margaret Ng argued that the way
in which the Article 23 proposals were handled would be a crucial test

56
Danny Gittings, “Changing Expectations.”
57
Ma Ngok, Political Development in Hong Kong, 212, citing Ming Pao Daily News, Decem-
ber 14, 2002.

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130 Carol A. G. Jones

of the “one country, two systems” formula.58 There was, she said, hardly
anything “more crucial to the preservation of Hong Kong’s separate sys-
tems and way of life” than the rights and freedoms people in Hong Kong
enjoyed, which include, “in particular, a free press, the free flow of infor-
mation, freedom of speech and of association, and free and open debate of
political, religious or cultural views, no matter how distasteful they may
be to government. . . . It is universally appreciated that this should remain
unchanged after reunification, and that the situation in the rest of China
should not spread to the SAR [the HKSAR].”59
The government pressed ahead with the proposals. The public respond-
ed on July 1, 2003, when 500,000 people demonstrated against Article 23
in what political scientist Ma Ngok describes as “the largest indigenous
social movement in Hong Kong’s history.”60 The turnout reflected deep
discontent with the Hong Kong government, concern as to how the over-
broad national security legislation would be used, and the general distrust
of the Mainland government. As opposition continued, the government
eventually announced that it would postpone the legislation. Neither Bei-
jing nor the Hong Kong government appear to have learned any lessons
from this attempt to force through what many perceive as a “Mainland-
ization” policy. A similar climb down occurred in 2012, when proposals to
introduce “patriotic education” into the school curriculum also triggered
mass protests. The threat to the rule of law became a lightning rod around
which discontent with the increasing Mainland Chinese presence in Hong
Kong coalesced.
Fostering patriotism has been a theme of the PRC’s policy toward Hong
Kong since 1997. Mainland officials were surprised at the lack of enthu-
siasm displayed by Hongkongers for reunion with the motherland. By
2012, surprise had turned to anger as anti-Mainland protestors raised the
old colonial flag to symbolize their discontent. The mission of the Hong
Kong City-State Autonomy Movement, moreover, is to “safeguard Hong
Kong’s autonomy” by pushing for greater separation from the Mainland.61
Its existence owes much to the development, since 1997, of a local identity
partly founded on a sense that Hong Kong’s core values are under at-
tack by the Mainland government. One of these core values is freedom of
expression. The first major blow to this occurred in 1998, when Ng Kung-
siu 吳恭劭 and Lee Kin-yun 利建潤 were convicted of publicly desecrating
and willfully defiling both the national and regional flags. Their acts, they

58
Margaret Ng, “Draconian Measures Threaten Hong Kong Freedoms.”
59
Margaret Ng, “Draconian Measures Threaten Hong Kong Freedoms.”
60
Ma Ngok, Political Development in Hong Kong, 210.
61
Stuart Lau, “Crusade for Hong Kong.”

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The Rule of Law in Pre- and Post-1997 Hong Kong 131

defended, represented the exercise of their freedom of expression. The

Court of Appeal agreed and overturned the convictions, arguing that the
defendants’ actions were protected under Article 19 of the International
Covenant on Civil and Political Rights and under Article 27 of the Basic
Law. The government disagreed and took the case to the CFA. On Decem-
ber 15, 1999, the chief justice Andrew Li Kwok-nang 李國能 delivered its
judgment. In a speech redolent with the full rhetoric of liberal rule of law,
he stated: “This freedom includes the freedom to express ideas which the
majority may find disagreeable or offensive and the freedom to criticize
governmental institutions and the conduct of public officials. . . . The Basic
Law contains constitutional guarantees for the freedoms that are of the
essence of Hong Kong’s civil society.”62
It is commonplace among lawyers that the rule of law is “breached more
oft” in the honor than in the observance. In this case, the CFA decided that
some degree of restriction was justified, since protecting the dignity of the
national and regional flags was a legitimate matter of community interest.
Freedom of expression could be restricted for the protection of national se-
curity or of public order (ordre Public), a concept new to Hong Kong law.63
The convictions were reinstated. Hong Kong people were used to some
of the legal arguments, not least when “the scholarly, reasonable Chief
Justice” quoted at length in his judgment from the sayings of President
Jiang Zemin 江澤民 of the PRC, and the chairman of the Basic Law Draft-
ing Committee. These arguments reminded the population that the five
stars on the HKSAR flag “symbolise the fact that all Hong Kong compatri-
ots love their motherland.”64 One local journalist lauded the judiciary for
defending the right to protest and the right of people not to be arbitrarily
arrested and detained, and for having done so “freely, fearlessly and in
strict accordance with law.”65 The requirement, under the Public Order
Ordinance, of applying to the commissioner of police for permission to
demonstrate has since been repeatedly criticized as giving him an admin-
istrative veto over political protests.
The CFA went some way to retrieve its reputation in 2005, when it con-
sidered a case involving the Falun Gong,66 which was banned as a quasi-
religious cult on the Mainland. In 2002, members of the group were arrested
by the Hong Kong police for causing an obstruction during a peaceful dem-

62
HKSAR v Ng Kung Siu and Lee Kin Yun.
63
The term ordre Public was defined as meaning “public order” in the 2005 case of Leung
Kwok Hung and Others v HKSAR.
64
Elihu Lauterpacht, C. J. Greenwood, and A. G. Oppenheimer, International Law Reports,
vol. 122, 582.
65
Cliff Buddle, “Falun Gong Ruling Is in the Interests of Us All.”
66
Yeung May Wan v HKSAR.

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132 Carol A. G. Jones

onstration outside the Mainland government’s liaison office. Appealing

their conviction, they argued that they were defending human rights and
the rule of law, and that the charges against them were malicious persecu-
tions due to pressure from the Mainland.67 The case was seen as “a key test
of judicial independence under Chinese rule.”68 Although the Falun Gong
demonstrators had obstructed a public place, the CFA argued that, “[w]hen
obstruction results from persons exercising the constitutional rights to dem-
onstrate, the importance of that fundamental right must be given substan-
tial weight in deciding whether the obstruction is reasonable.”69 Causing an
obstruction by demonstration did not automatically constitute an offense,
nor was obstructing a public place serious enough to muzzle demonstrators
exercising their right to free speech. The police had failed to pay due regard
to the importance of the demonstrators’ right to protest. Their arrest was
thus unlawful and they were entitled to use reasonable force to resist. In
July 2005, the CFA also stipulated that the policing of demonstrations must
be done in a way “which fully protects . . . the precious right to protest.”70
The police response to such street demonstrations is often seen as a
barometer of the state’s political character. Since 1997, however, the police
force has become increasingly politicized, undercutting its public legiti-
macy. Initially, although post-1997 Hong Kong remained a semiauthori-
tarian state, an opinion poll conducted in 2006 showed people’s satisfac-
tion with the police to have reached a record high.71 Every year since 2003,
mass pro-­democracy rallies have taken place on July 1, the anniversary of
the Handover; other demonstrations have been everyday events. How-
ever, relations between the police and the public have gradually deterio-
rated, and public support has been damaged by a series of incidents. The
police used harsh tactics during the 2005 World Trade Organization meet-
ing protests, leading many locals to sympathize with the protestors and
offer them aid and food.72 More complaints followed in subsequent years
about the police’s increasingly rough handling of protestors, in particular
at demonstrations outside the PRC liaison office. On April 1, 2012, for ex-
ample, a protest took place outside the liaison office, where the national
flag was allegedly desecrated. Over fifteen months later, a young woman,
Yau Ka-yu, was detained and charged for her part in the unlawful as-
sembly, drawing allegations of political harassment of activists. The police
67
“Falun Gong Followers Begin Appeal over Convictions.”
68
Y. K. Lai, “Top Court Overturns Criminal Convictions against Falun Gong Followers.”
69
Danny Gittings, “Changing Expectations.”
70
Editorial, South China Morning Post, July 12, 2005.
71
Public Opinion Programme, University of Hong Kong, Press Release, October 3, 2006.
72
Carol A. G. Jones and Jon Vagg, Criminal Justice in Hong Kong, 529–552.

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The Rule of Law in Pre- and Post-1997 Hong Kong 133

were seen less as neutrally “holding the ring” between political groups
than as protecting their political masters. This was spectacularly evident
in their violent anti-riot tactics deployed against the Occupy Central pro-
testors in 2014, when police use of tear gas and pepper spray against un-
armed, peaceful demonstrators sparked worldwide controversy.
The police have countered that their tactics remain unvaried, that no
political pressure influences their handling of protests, and that the Hong
Kong public is simply now more vociferous regarding its rights and free-
doms. However, the Independent Police Complaints Council did censure
senior officers for their conduct in protests during the visit of the PRC
vice-premier Li Keqiang 李克強 to Hong Kong in 2011; sixteen complaints
were made and thirteen police officers were punished. In that incident,
Wong Kin 黃健 was removed by force by five officers from the police’s VIP
protection unit as he appeared outside his home wearing a Tee-shirt with
the words “Vindication for June 4” printed on the back. He complained
that the officers had assaulted him.73 Moreover, in 2013, a US human rights
report documented “an increase in arbitrary arrest or detention and other
aggressive police tactics hampering the freedom of assembly.”74 It fur-
ther read:

[The] police admitted using pepper spray canisters with more power-
ful jets at close range against protesters and even some journalists dur-
ing [PRC] President Hu Jintao’s July visit [in 2012]. Activists and some
lawmakers expressed concern about the lack of guidelines as to whether
a person arrested on assault charges related to public demonstrations
would be charged under the Police Force Ordinance (PFO) or the Offenc-
es Against the Person Ordinance (OAPO). Both criminalize assault on a
police officer on duty, but while the PFO carries a maximum penalty of
six months’ imprisonment and a HK$5,000 (US$644) fine, the OAPO car-
ries a maximum penalty of two years’ imprisonment. Some activists also
alleged that police faced no penalty for making arrests that ultimately
were not prosecuted or were dismissed by the courts, allowing them to
use arrest to intimidate and discredit protesters. The Civil Human Rights
Front NGO alliance reported that law enforcement charged an increasing
number of protest participants under the tougher OAPO.75

73
“Action Taken over Police Handling of Li Keqiang Visit.”
74
Bureau of Democracy, Human Rights, and Labor, “2012 Country Report on Human
Rights Practices.”
75
Bureau of Democracy, Human Rights, and Labor, “2012 Country Report on Human
Rights Practices.”

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134 Carol A. G. Jones

Following the Occupy Central protests, the police were also found to
have given misleading evidence against those accused of public order of-
fenses; they were widely censured for an assault on one protestor that was
caught on camera. Though it is likely that many police officers themselves
sympathized with the aims of the Occupy Central Movement, their struc-
tural position in the politicolegal machinery of governance and absence of
individual constabulary power means that, in extremis, even sympathetic
officers are arms of government rather than servants of the people.
The government’s adherence to the principle that no one is above the
law has also suffered a series of blows since 1997. In 2003, for example, the
financial secretary, Antony Leung Kam-chung 梁錦松, had to resign after
it was discovered that he had purchased a Lexus car shortly before he
himself had raised the tax on luxury cars in the budget. Donald Tsang
Yam-kuen 曾蔭權 (r. 2005–2012), who succeeded Tung Chee-hwa as chief
executive, was also severely criticized for allegedly accepting favors from
tycoon friends, such as flights in their private jets, trips on their yachts,
and the lease of a luxury Shenzhen penthouse at a discounted rent.
Tsang’s successor, Leung Chun-ying 梁振英 (r. 2012–2017), was also ac-
cused of breaching the law by adding illegal structures to his home, an of-
fense for which he had publicly lambasted his rival in the race for the chief
executive position. In 2012, 2013, and 2014, successive scandals emerged
involving government ministers, high-ranking officials, and the former
commissioner of the Independent Commission Against Corruption, the
latter arguably inflicting the most damage on Hong Kong’s reputation as
a city of law. These persistent stories of malfeasance took Hongkongers
back to the “bad old days” of crony colonialism, in the 1960s, before the
rule of law attacked the nepotism and “connections” (guanxi 關係) that
had so skewed society in favor of the rich and powerful. This was exactly
what Hongkongers fear: Mainland ways undermining Hong Kong’s core
values.
In fact, such incidents both undermined and reaffirmed the power of
rule of law discourse, for while they revealed an administration whose
members clearly thought themselves above the law, their censure simulta-
neously suggests that there were some still determined to ensure that the
rule of law remained the standard by which the rulers could be called to
account. However, in June 2012, a pessimistic law professor at the Univer-
sity of Hong Kong argued that the rule of law was in continuous decline.76
An opinion poll on the eve of the fifteenth anniversary of the Handover
in 2012 revealed that Hong Kong people’s mistrust of the Mainland gov-
ernment stood at 37 percent, the lowest trust rating since 1997, when it

76
Stuart Lau, “Rule of Law Declined under Tsang.”

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The Rule of Law in Pre- and Post-1997 Hong Kong 135

stood at 44 percent.77 The walls of law that it was once thought would
protect Hong Kong after 1997, though still standing, have been repeatedly
breached by Mainland incursions. The irony is that law and order, quali-
ties of life that make Hong Kong attractive to Mainlanders and to overseas
investors, are under threat from Mainland Chinese intervention.

Conclusion
In August 2014, Beijing issued its sternest warning to Hong Kong. In a
white paper, the PRC’s State Council stated in no uncertain terms that
Mainland China controlled Hong Kong, that “some people” had a “con-
fused or lopsided” understanding of the “one country, two systems”
formula, and that the central government held comprehensive jurisdic-
tion over the HKSAR. According to the white paper, Hong Kong is the
subordinate party; it enjoys only the degree of autonomy that Beijing al-
lowed, and this could even be taken away. Its politicians, administrators,
and judges must all put the interests of “one country” first and accept the
supervision of the central authorities.78
It would therefore seem that, on the face of it, the rule of law is dead in
Hong Kong. Paradoxically, however, rule of law ideology remains a particu-
larly powerful counter-discourse. Whatever its shortcomings in practice, it
offers a fairer legal system than the Mainland’s summary process driven
apparently by the caprice and arbitrariness of politics. A system that delivers
justice some of the time is better than one that delivers no justice at all. For
as long as Mainland China’s legal system continues to fall far short of uni-
versally acknowledged due process standards, it is thus likely that Hong­
kongers will come to the defense of the rule of law. Promoted in the past
as a remedy for the British colonial government’s democratic deficit, it has
become a ruling idea in the transition years, seizing the public imagination
and becoming a core value, the territory’s principal shield against Mainland
depredations but also central to a Hong Kong identity that resists PRC rule.
Rule of law ideology and institutions (especially the independence of
the judiciary) have hindered PRC rule over Hong Kong. As if to acknowl-
edge this, in 2012, Beijing’s supporters in Hong Kong called for all judges
to be Chinese nationals, a move that would sever the territory’s links with
the Common Law world and exclude foreign judges from the CFA. Lo-
cal law professor Eric Cheung Tat-ming observed that “there are tensions
between Hong Kong and the mainland . . . and those in authority are not

77
A. Cheng, “Action Needed to Quell Rising Hong Kong-Mainland Tension.” The poll
was conducted by the University of Hong Kong’s Public Opinion Programme.
78
State Council, People’s Republic of China, “The Practice of the ‘One Country, Two Sys-
tems’ Policy.”

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136 Carol A. G. Jones

defending our beliefs.”79 As the year drew to an end, the CFP judge Ke-
mal Bokhary observed that there was “a storm of unprecedented feroc-
ity” gathering over the rule of law in Hong Kong.80 This storm intensified
in 2014, when pro-democracy activists stepped up their protests against
Beijing’s continued failure to deliver universal suffrage. Occupy Central’s
program of peaceful civil disobedience was regarded by Beijing and its
supporters in Hong Kong as illegal. There were even fears of a violent
Tiananmen-type crackdown. The head of Beijing’s liaison office, Zhang
Xiaoming 張曉明, declared that it would have long-term repercussions.81
In 2015, the weakness of the walls of law was again obvious when five
owners of a bookshop selling books critical of Chinese communist lead-
ers “disappeared” from Hong Kong to re-emerge in detention in Main-
land China.
However, if there is a lesson from Hong Kong’s British colonial history,
it is twofold: first, Hongkongers are well versed in how to resist “coloni-
zation,” and second the “colonizer” can greatly enhance its hegemony by
embracing the rule of law. Karl Marx knew this, the British learned it, and
Beijing might usefully contemplate how a foreign colonial government,
short on legitimacy, achieved more by its tolerance of the June 4, 1989,
demonstrations than by any other single act in its 150-year rule.

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