The terms of the Order-in-Council were echoed and further implemented in the New Territories (Exemption from Laws) Ordinance, 1899 (No 6 of 1899). The position, therefore, as regards proceedings other than land cases is that such of the laws of England as existed when the Colony obtained a local legislature, that is to say, on 5th April 1843 are the governing laws subject to two provisions,
Firstly "except so far as the said laws are inapplicable to the local circumstances of the Colony or its inhabitants;” Secondly "and except so far as they have been modified by laws passed by the said legislative.”
The first provision has always been construed to let in Chinese customary law when a necessity arises of preventing injustice or oppression. The passages already quoted from the Secretary of State's despatch and from the Governor's proclamation bear out that construction in regard to the application of section 5 of the Supreme Court Ordinance to the New Territories.
As to the date for the recognition of customary law to be applied in such cases, opinions differ. One opinion is to be found appended to the Report of the Committee appointed in 1948. The choice there offered is between custom existing in 1841, when Captain Elliot took over Hongkong, that existing in 1898, when the New Territories were leased to the United Kingdom, or that existing in 1905, when the New Territories Land Ordinance, 1905, was enacted. The anonymous author of that opinion inclined to select the latter year, but the Committee expressed no opinion on the matter. The New Territories Administration, on the other hand, has interpreted “Chinese Law and custom” to mean the law and custom of Manchu China as it existed on April 20th, 1899. For reasons given in my previous article, it is submitted that as in the Colony of Hongkong, so in the New Territories, a court should apply the Chinese customary law existing at the time that court is called upon to determine any issue. Particular support can be found for that submission in respect of the New Territories in the opinion of the Attorney General in 1898 that it was "hardly necessary...to enter into the question as to whether any and, if so, which of the laws of England in force on 5th April, 1843... should be specially included in an exempting Ordinance, because such laws were only brought into force in Hong Kong “so far as they were not inapplicable to the local circumstances of the Colony or its inhabitants.” The Government was
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The terms of the Order-in-Council were echoed and further implemented in the New Territories (Exemption from Laws) Ordinance, 1899 (No 6 of 1899). The position, therefore, as regards proceedings other than land cases is that such of the laws of England as existed when the Colony obtained a local legislature, that is to say, on 5th April 1843 are the governing laws subject to two provisions,
Firstly "except so far as the said laws are inapplicable to the local circumstances of the Colony or its inhabitants;” Secondly "and except so far as they have been modified by laws passed by the said legislative.”
The first provision has always been construed to let in Chinese customary law when a necessity arises of preventing injustice or oppression The
passages already quoted from the Secretary of States' despatch and from the Governor's proclamation bear out that construction in regard to the application of section 5 of the Supreme Court Ordinance to the New Territories
As to the date for the recognition of customary law to be applied in such cases opinions differ. One opinion is to be found appended to the Report of the Committee appointed in 1948," The choice there offered is between custom existing in 1841, when Captain Elliot took over Hongkong, that existing in 1898, when the New Teritories were leased to the United Kingdom, or that existing in 1905, when the New Territories Land Ordinance, 1905, was enacted The anonymous author of that opinion inclined to select the latter year but the Committee expressed no opinion on the matter The New Territories Administration, on the other hand, has interpreted “Chinese Law and custom” to mean the law and custom of Manchu China as it existed on April 20th 1899," For reasons given in my previous article," it is submitted that as in the Colony of Hongkong so in the New Territories a court should apply the Chinese customary law existing at the time that court is called upon to determine any issue Particular support can be found for that submission in respect of the New Territories in the opinion of the Attorney General in 1898 that it was "hardly necessary...to enter into the question as to whether any and, if so, which of the laws of England in force on 5th April, 1843... should be specially included in an exempting Ordinance, because such laws were only brought into force in Hong Kong “so far as they were not mapplicable to the local circumstances of the Colony or its inhabitants "? The Government was
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