The Autonomy of Law and a Case of Judicial Exceptionalism in Post-War Hong Kong

Abstract

A comprehensive body of case developed in immediate postwar years which interpreted and applied Proclamation No. 15 - Landlord and Tenant (1945) and this article probes it with reference to precepts of the relative autonomy of law which was proposed by a number of theorists in 1960s and 1970s.The BMA’s policy rent control and preservation of residential tenure were realized by a sympathetic predisposition towards tenants in Tenancy Tribunal on natural justice grounds which, on appeal, District Court shored up by reference to legal requirements of Proclamation. In major cases when landlord prevailed in District Court, it is notable that Tribunal was, in one case, admonished for not having a sufficiently hard-headed reason for it siding with tenant (Ching Sum Co) and, in other, landlord won because Tribunal made a factual error in relation to bona fides of tenant (Re On Lok Co). A closer examination of case shows that District Court permitted executive’s pro-tenant policy to prevail if reasons for decision in a tenant’s favor in Tenancy Tribunal could be dressed up in legal terms and tenant was not so repulsive as to make a finding of their bona fides impossible. This note argues that judicial independence was proclaimed in Hong Kong by Bench in exceptional cases while trend of decisions indicates nothing short of loyalty to executive.