then considering whether the New Territories should be exempted from the application of any legislation in force in Hong Kong in 1898. The Attorney General apparently took the view that as regards any English law in force in the Colony such an exemption would not arise, since it would be exempted from application to the New Territories by the first provision of section 7 of the Supreme Court Ordinance, 1873, even though that particular law might not be inapplicable to the circumstances and the inhabitants of the Colony of Hong Kong. In other words, he does not appear to have been looking at the theoretical needs of the inhabitants of the area along the south bank of the Shum Chun River in 1843, which area later became the New Territories in 1898, but at their requirements at the time he considered the matter in December 1898.
A former Solicitor General of Hong Kong has drawn attention to the distinction between the provisions of what is now section 17 of the New Territories Ordinance and of what is now section 5 of the Supreme Court Ordinance. To this matter, it will be necessary to revert later when we consider the customary law on particular subjects. It is, however, fitting to observe at this point that the legislature in enacting section 17 of the New Territories Ordinance did not specify the date for the recognition of "Chinese custom or customary right affecting such land.” The plain meaning of the words, it is submitted, leads one to the conclusion that the Chinese customary law to be so recognised and enforced is that which affects the land at the time of the hearing of the proceedings. The legislature must be presumed to have been logical; it would be unlikely to select modern Chinese customary law for application in land cases and the Law of the Manchu Ts'ing Dynasty obtaining in the Province of Kwangtung in 1843 or in 1899 for application in other proceedings arising in the New Territories. Here again, it is submitted, is an additional argument in support of the view that in all types of proceedings, both those involving land and otherwise, the Chinese customary law applicable, if it is to be applied, is modern Chinese customary law obtaining in the New Territories.
Having so defined the date for recognition of Chinese customary law, the question then arises as to what that Chinese customary law comprises. In 1911, that question was difficult to answer, and we may with advantage digress a moment to consider the words of the Chief Justice delivering the judgment of the Full Court in the case of LI