Max WL Wong the Legal Abolition of Concubinage in Hong Kong

Max WL Wong Chinese Marriage and Social Change The Legal Abolition of Concubinage in Hong Kong Chinese Marriage and Social Change Max WL Wong Chinese Marriage and Social Change The Legal Abolition of Concubinage in Hong Kong Max WL Wong University of Hong Kong Hong Kong, Hong Kong Island, Hong Kong ISBN 978-981-15-1643-6 ISBN 978-981-15-1644-3 (eBook) https://doi.org/10.1007/978-981-15-1644-3 © Springer Nature Singapore Pte Ltd. 2020 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. 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The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore Preface This book originated from research work of a potential litigation a decade ago, which would have hopefully helped to clarify a woman’s status as a wife or concubine in a family dispute. However, my research work had to be halted because, like many such family disputes in the Chinese community, this case was settled privately by mediation. Nonetheless, the materials gathered during that period laid down a good foundation for further study. I decided to go forward by conducting further research on the legal status of the concubine in Hong Kong. Since then, the aca- demic journey of this research has taken me into the uncharted waters of traditional Chinese family law in the Qing period and the application of Chinese customary laws and practices in Hong Kong. This journey is never-ending, even after this book, because traditional Chinese family law is still under-researched. I soon realised the difficulties in researching traditional Chinese laws after I started to research the legal status of the concubine in the Qing period. The relevant elements of Qing law included statutory laws (such as Da Qing Lü Li), regulations in palace (such as Da Qing Huai Dian), judgments and precedents (such as Xin An Hui Lan), provincial laws and regulations, judgments by local magistrates (such as archives in Ba County at Sichuan or Tan Hsin at Taiwan), personal memoirs of local magistrates and other related materials on the rules and regulations at local levels, not to mention that there were special laws which governed different ethnic groups such as Mongolians. I analyse the status of the concubine in Qing laws in the Hong Kong context. Then, I attempt to investigate the ways in which these laws were transplanted into the common law system in Hong Kong after 1843 and, in a wider context, the common law systems in other East Asian jurisdictions. This journey also led me to study government records in the National Archives in the United Kingdom and the Public Records Office in Hong Kong. With the support of research assistants, I got a clearer picture of the policy developments in both governments that led to the abolition of concubinage and the promulgation of the Marriage Reform Ordinance in Hong Kong in 1971. v vi Preface This book could not have been finished without the support of many scholars, friends and research assistants. I would like to thank Prof. Michael Palmer and Dr. Dixon Wong for their continuous support and encouragement. I would also like to thank Harry Tse, Melissa Leung, Billy Fung, Samuel Lai, Eric Lai, Janice Lee and Dr. Amy Kellam for their assistance and support in this journey. Finally, I would like to thank my wife, Vivian, and my daughters, Frances and Agnes. As always, their patience and support have been my greatest motivation to finish this mono- graph. All in all, any errors in this book are mine alone. Hong Kong, Hong Kong Island, Hong Kong Max WL Wong October 2019 Contents Part I The Issues 1 Introduction �� 3 1.1 Introduction . 3 1.2 From Strickland Report 1953 to Marriage Reform Ordinance 1971 �� 5 1.3 Literature Review �� 9 1.4 Outline of Chapters . 14 1.5 The Sources . 16 References �� 17 Part II Concubinage in Chinese Law and Society 2 The Meaning of T’sip in Qing Law �� 21 2.1 Introduction . 21 2.2 The Reception of Chinese Law in Hong Kong . 22 2.3 Difficulties in Identifying Qing Family Law Relating to a Concubine . 25 2.3.1 The Meaning of Concubine in Qing Law �� 25 2.4 The Institution of Concubinage: Qing Laws and Practices . 29 2.4.1 Monogamous or Polygamous? �� 29 2.4.2 The Sources of a Concubine �� 33 2.4.3 The Inferiority of a Concubine �� 36 2.4.4 The Second Wife or Concubine in Kim Tiu �� 45 2.4.5 Dissolution of the Institution of Concubinage . 47 2.4.6 The Inheritance Right of the Children of a Concubine . 48 2.4.7 Maintenance and the Appointment of a Posthumous Heir �� 50 2.5 Conclusion �� 51 References �� 52 vii viii Contents 3 Judicial Construction of T’sip in Chinese Family Law in East Asia: A Comparative Perspective . 57 3.1 Introduction . 57 3.2 Judicial Approaches to T’sip . 59 3.2.1 The Application of Chinese Customary Law �� 59 3.2.2 The Status of T’sip in the GQC . 66 3.2.3 The Elements of a Union of Concubinage �� 71 3.2.4 The Relationship Between the Principal Wife and the Concubine . 76 3.2.5 Dissolution of a Union of Concubinage �� 78 3.2.6 Financial Support for the Concubine from Family Members After the Death of the Husband �� 81 3.2.7 Succession upon Intestacy . 84 3.3 Conclusion . 88 References �� 90 Part III Concubines and Colonialism 4 The Origins of the Strickland Report and the Search for the Chinese Customary Law and Custom in Hong Kong �� 97 4.1 Introduction . 97 4.2 The Strickland Report . 98 4.2.1 Origin . 98 4.2.2 Discussions �� 102 4.2.3 Experts . 106 4.2.4 Membership . 110 4.2.5 Other Comments �� 111 4.2.6 Publication of the Report . 112 4.2.7 Abolition of Concubinage . 115 4.3 Post-strickland Report: Rejection of the Abolition of Concubinage in 1956 �� 122 4.3.1 Submission to the Executive Council in 1952 . 122 4.3.2 Sir Man Kam Lo’s Comments and the Executive Council’s Decision . 123 4.3.3 Publication of the Report and Public Consultation . 125 4.3.4 The Disapproval of the Report in Executive Council 1956 . 126 4.3.5 Opinions from Hong Kong Council of Women . 126 4.3.6 Opposition from Secretary for Chinese Affairs . 128 4.4 Conclusion . 131 References �� 132 5 The Colonial Office and the Abolition of Concubinage �� 139 5.1 Introduction . 139 5.2 Opposition from Hong Kong Council of Women and Other Organisations �� 140 Contents ix 5.2.1 Six JPs . 141 5.2.2 Hong Kong Council of Women . 142 5.2.3 The YWCA in Hong Kong �� 144 5.3 The Colonial Office . 145 5.4 Decision of the Executive Council in 1958 . 149 5.5 Ridehalgh/McDouall Report 1960 �� 153 5.5.1 Social Organisations �� 153 5.5.2 Pressure from Colonial Office, Again �� 156 5.5.3 Submission of the 1960 Report to the Executive Council �� 156 5.5.4 Commentaries on the Ridehalgh/McDouall Report 1960 . 157 5.6 Final Decision: Abolition of

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