Recently, the Legislative Council enacted the Statute Law (Miscellaneous Provisions) Ordinance 2024, which aims to adaptively amend various ordinances in Hong Kong. A significant focus of this ordinance is the replacement of outdated colonial terminology that no longer aligns with Hong Kong’s post-handover constitutional order.
Consequently, many commentaries have depicted this legislative move as “bidding farewell to His Majesty” or “ending the colonial mentality”. While these views have some merit, I would like to present an alternative perspective.
In the period leading up to the 1997 handover, the Standing Committee of the National People’s Congress issued the Decision of the Standing Committee of the National People’s Congress on Treatment of the Laws Previously in Force in Hong Kong in Accordance with Article 160 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China. Annexes I and II of the decision stipulated that parts or all of 24 Hong Kong ordinances and subsidiary legislations were incompatible with the new constitutional order of the HKSAR, and thus would not be adopted as laws of the HKSAR.
Furthermore, the decision established general substitution principles to replace colonial terminologies in Hong Kong’s existing laws with terms compatible with the new constitutional order of the HKSAR. These principles mandated that references to “Her Majesty”, “the Crown”, “the British Government”, or “the Secretary of State” or to a similar name or expression shall be construed as the Central People’s Government or other competent authorities of the People’s Republic of China if the content of the provision falls under one of the three situations: (1) it relates to title to land in Hong Kong; (2) it involves affairs provided for in the Basic Law for which the Central People’s Government is responsible; or (3) it involves the relationship between the Central People’s Government and the HKSAR. If the provision does not fall within the above situations, the name or expression shall be construed as the government of the HKSAR.
References to “the Governor,” “the Governor in Council,” “the Chief Secretary,” and “the Attorney General” were to be interpreted as referring to the chief executive of the HKSAR, the chief executive in council, the chief secretary for administration, and the secretary for justice respectively. References to the Legislative Council, the Judiciary, or the executive authorities were to be construed and applied in accordance with the relevant provisions of the Basic Law.
These substitution principles are implemented in Hong Kong through the Hong Kong Reunification Ordinance on the day of the handover. Section 6 of this ordinance added Schedule 8 to the Interpretation and General Clauses Ordinance, applying these principles to uniformly amend colonial terminology in Hong Kong’s original laws.
In essence, some amendments in the Statute Law (Miscellaneous Provisions) Ordinance 2024 were preemptively addressed through the substitution principles in Schedule 8 of the Interpretation and General Clauses Ordinance. For instance, references to the “Legislative Council” in Sections 36, 113, and 114 of the Bankruptcy Ordinance were construed “in accordance with the relevant provisions of the Basic Law” as of the handover day. The amendment to the Interpretation and General Clauses Ordinance on April 9, 1998, further clarified that references to the “Lap Fat Kuk” in Hong Kong’s original ordinances should be interpreted as references to the “Lap Fat Wui”. Thus, references to the “Legislative Council” in the Bankruptcy Ordinance were already amended on the handover day, not 2024. Similar examples include references to “Her Majesty” in Sections 22, 31(1), and 32(1)(m) of the Post Office Ordinance, “the Governor” in Sections 5, 14(a), (b), (c), and (d), and 32(5), and references to the “High Court” in Form 4 of Schedule 1 of the Criminal Procedure Ordinance. These references were appropriately amended through the substitution principles in the Interpretation and General Clauses Ordinance. Therefore, Hong Kong did not recently “bid farewell to His Majesty”; this transition occurred on the handover day.
Nonetheless, the amendments in the Statute Law (Miscellaneous Provisions) Ordinance 2024 bear practical significance. First, direct amendments to Hong Kong’s ordinances mean that the public no longer needs to consult both the substitution principles in the Interpretation and General Clauses Ordinance and the local ordinances to grasp the provisions’ true meaning, thereby avoiding misconceptions that Hong Kong has not fully “decolonized”. Additionally, experience shows that colonial terminology in laws can lead to legal disputes, and the amendments brought by the Statute Law (Miscellaneous Provisions) Ordinance 2024 can successfully enhance legal certainty.
For example, in the case of The Hua Tian Long (No. 3) [2010] 3 HKC 557, one issue was whether references to “Her Majesty” and “the Crown” in Section 25(1) of the Crown Proceedings Ordinance and Sections 12E(2) and (4) of the High Court Ordinance should be interpreted as referring to the People’s Republic of China, and by extension, the Central People’s Government. Although the court did not directly address this issue, it opined that interpreting these references as referring to the People’s Republic of China or the Central People’s Government would significantly stretch the boundaries of statutory interpretation. Consequently, it agreed with the plaintiff that these references should be interpreted as referring to the HKSAR government.
Since the Hua Tian Long (No. 3) case did not resolve the issue of how colonial terminology in Hong Kong’s ordinances should adapt to the post-handover constitutional order, disputes over their interpretation persist. The passage of the Statute Law (Miscellaneous Provisions) Ordinance 2024 can amend colonial terminology in some Hong Kong ordinances, replacing them with terms that align with the HKSAR’s constitutional order, thereby avoiding future disputes caused by ambiguous terms.
However, the task of “bidding farewell to His Majesty” remains incomplete, as many colonial terms persist in Hong Kong’s ordinances and need to be gradually amended by the government. Although the Interpretation and General Clauses Ordinance provides clear substitution principles, and many cases have “decolonized” Hong Kong’s laws through case laws, this approach requires the public to refer to the ordinances in question, the Interpretation and General Clauses Ordinance and related cases, posing a significant challenge for those without a legal background. Moreover, as previously mentioned, there is yet to be a judicial consensus on how to interpret certain colonial terminology in Hong Kong’s ordinances. Therefore, government-led updates to the ordinances can enhance legal certainty and reduce the likelihood of disputes.
In summary, although Hong Kong already “bid farewell to His Majesty” on the day of the hand-over through the substitution principles in the Interpretation and General Clauses Ordinance, colonial terminology remains in the laws, complicating legal understanding. The HKSAR government should continue its decolonization efforts to ensure that Hong Kong’s laws fully “bid farewell to His Majesty” in terminology.
The author is a solicitor, a research assistant at the School of Law of the City University of Hong Kong, and a doctoral candidate at the School of Law of Tsinghua University.
The views do not necessarily reflect those of China Daily.
