CHOK HUNG vs. LI FUI CHOI
"No enquiry has ever been made to ascertain what Chinese law is. It is an extraordinary fact that the Court of this Colony, in which the Chinese live and trade as freely as Englishmen and citizens of other countries, should do with regard to the Chinese what it would never dream of doing with regard to Frenchmen or Germans or Americans; and not only that, but that it should be entirely in ignorance of Chinese law on any subject which concerns the family life and family law of those who form the bulk of its inhabitants, which is so often before the Courts—its marriage law, and the rights of property it gives; its law applicable to children. We are in the dark as to the law of majority, as to the customary law of China generally, and above all as to its law of succession. The attitude of the Court has been to let the troublesome question wait until it is definitely raised by the parties. I myself have been guilty of this, though I have rebelled more than once or twice.
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During the last half century, there have been three such enquiries, of which the results have been published. I refer, of course, to the Report of the Committee appointed in 1948,1 Greenfield's article on marriage,2 and the report and recommendations on the same subject by the Attorney General and Secretary for Chinese Affairs in 1960.2 The latter two publications do not deal with any Chinese customary law of marriage particularly obtaining in the New Territories, but the first does deal with certain aspects of Chinese customary law peculiar to the New Territories.
If a search is made of the law reports, only two cases will be found where the particular Chinese customary law obtaining in the New Territories was considered. Prima facie, that is a remarkably small number for 57 years of law reporting, and it is worthwhile probing the reasons for this dearth of case law.
Firstly, the Chinese much prefer to compose their disputes or to refer them to extra-judicial arbitration than to a court of law.**
Secondly, in deference to this general desire of the litigants, the District Officers arranged for the bulk of the disputes which came before them, in their Small Debts Courts or when they sat as Assistant Land Officers to decide summary land cases, to be settled out of court, most