Marco Wan
The law features prominently in Hong Kong cinema: local films often tackle controversial legal subjects, law enforcement agencies and officers form an integral part of plots involving criminals or triads, and narratives revolving around legal trials are so numerous that they arguably form a subgenre worthy of study on their own. When one looks back at the period between the signing of the Joint Declaration between China and Britain in 1984 and the transfer of sovereignty in 1997 alone, one sees a plethora of films related to the law. As a starting point, the period is framed by Johnny Mak Dong-hong’s Long Arm of the Law (1984) and Joe Ma’s Lawyer, Lawyer (1997). The films in between these two epoch-defining years range from The Unwritten Law (Ng See-yuen, 1985) and its sequels The Truth (1988, Taylor Wong Tai-loi) and The Truth – Final Episode (Michael Mak Dong-git, 1989) which launched Andy Lau Tak-wah’s career, to legally-inflected comedies starring Stephen Chow such as Justice My Foot! (Johnnie To, 1992), to the now largely-forgotten films such as Cheung Kin-ting’s Queen’s Bench III (1990) and Chan Dung-chuen’s Law on the Brink (1994). Legal agents, processes, and institutions form an important part of Hong Kong’s filmic imagination. With the benefit of hindsight, this preponderance of films about the law is hardly surprising: the years leading up to the handover were a particularly tumultuous period in the territory’s legal history which witnessed such events as the drafting and enactment of the territory’s mini-constitution known as the Basic Law, the implementation of a Bill of Rights, the establishment of a new Court of Final Appeal, and arguments about the constitutional status of the Provisional Legislative Council towards the end of British rule, to name but a few. Films, as cultural products both reflecting and shaping aspirations and anxieties about the law, naturally engaged with the legal controversies of the time.
However, while there have been some interesting discussions of representations of law in Hong Kong cinema, they have been infrequent and sporadic at best. This chapter is an attempt to foreground the study of the ways in which the law has been represented in Hong Kong cinema. Specifically, it argues for the analysis of Hong Kong’s film texts in relation to the territory’s legal history: as cultural products embedded in the legal and cultural environment of their time, Hong Kong films can give historians insight into the territory’s legal development at a particular historical juncture. Analyzing these films in the context of legal history can in turn enhance our appreciation of the film texts; their representations of law cease to be purely thematic and can be read as responses to legal debates at the time of their production.1 The discussion which follows is inspired by scholarship in the burgeoning area of “Law and Film” studies in the legal academy. This is a diverse field which covers, inter alia, the jurisprudential dimensions of popular cinema, the use of film as a pedagogical tool in the law school classroom, the study of documentaries related to the law, and the use of films as evidence in the courtroom. However, one common vision amongst the diverse approaches in “Law and Film” studies is the insistence on the systematic and rigorous investigation of the relationship between cinema and the law, whatever form this investigation may take.2 This article therefore attempts to bring the study of Hong Kong film into dialogue with a rapidly growing area of legal studies.
Lawyer, Lawyer is a particularly interesting film for the study of the representation of law in Hong Kong cinema. In addition to the year of its appearance – 1997, the year which marked Hong Kong’s retrocession to mainland China – it is a film whose engagement with the territory’s legal debates was explicitly recognized at the time. Writing in the South China Morning Post, film critic Paul Fonoroff (who has a cameo role as the presiding judge in the film) notes that Lawyer, Lawyer came out at a moment in Hong Kong’s legal history when the new judicial process came under critical scrutiny, and therefore “could be interpreted as an attack on pre-July 1 notions of justice” and as the articulation of “several anti-colonial sentiments” against English law (Fonoroff 1997). The year of the film’s appearance and the explicit recognition of a possible interpretation of it as a response to changes in the law at the time of the handover mark out this film as one of particular significance to film critics, legal historians, and cultural-legal scholars.
Lawyer, Lawyer begins in late nineteenth-century Guangzhou, where the audience is introduced to Chan Mong-kut, a man both revered and feared for his intelligence in the local community, and his servant, Foon. The main plot of the story centers on the master–servant relationship: following a quarrel between the two men, Foon leaves Guangzhou to begin a new life in Hong Kong. However he is framed for murder and is to be brought to trial in the British colony. He names Chan as his defense counsel. When Chan learns that his former servant is in trouble, he rushes to his rescue. Foon’s trial takes place in a colonial courtroom in turn-of-the-century-Hong Kong. Unknown to Chan and Foon, the opposing counsel, Ho Chung, is none other than the murderer himself. As the plot develops, we learn that Foon’s real name is in fact Nim-sai, and that he is the love-child of Ho Sai, a wealthy businessman and a well-respected member of the local community, and his concubine. Ho Sai is Ho Chung’s father. This means that Foon, or Nim-sai, is Ho Chung’s half brother. Ho Chung has a reason to rid himself of Foon: without him, Ho Chung would be Ho Sai’s only child and would therefore be certain to inherit his father’s property. Ho Chung masterminds the murder in an attempt to frame Foon, so as to ensure that Foon would not constitute an obstacle to his inheritance upon Ho Sai’s death.
As Fonoroff points out, the film can be understood as a direct critique of English law in Hong Kong. The Caucasian judge in the trial is racist and condescending. He interrupts Chan while he is attempting to explain the motive for the murder; he tells Chan that he is “standing in the court of the Great British Empire, not in one of the provincial courts you have in China.” Chan himself is extremely critical of the attitude of the colonialist judge: “This guy is always talking about their ‘Great British Empire.’ Has he forgotten that Hong Kong is only on loan to Britain? They need to return it, for goodness sake!” Later on in the film, the injustice of the colonial legal system is made explicit when crucial testimony is excluded based on procedural irregularity. When Chan protests, the judge notes: “I’m sorry, the law is the law. Not a word can be changed. Chan Mon-kut, I can’t help you.” Critics have largely echoed Fonoroff’s understanding of the film and have interpreted the trial scene as a critique of the excessive procedural rigidity of colonial law. Lisa Stokes and Michael Hoover have noted that the trial scene can be read as “a send-up of by-the-book interpretations of the law with no regard for justice, reason or practicality” (Stokes and Hoover 1999: 252). In a similar vein, Sin Wai-man and Chu Yiu-wai have argued that Lawyer, Lawyer deliberately eschews “the over-determining image of an ideal occidental legal system” and expresses the vox populi’s “dissatisfaction with the rule of law’s (over-emphasis) on procedures” (Sin and Chu 1998: 161–162). This chapter examines the use of the body as a form of legal evidence in the film to argue that while it can indeed be read as an overt denunciation of colonial law, it also responds to the more specific problem of disruptions of legal time in 1997 Hong Kong.
The outcome of the trial turns on a piece of bodily evidence: Foon’s bottom. Ho Sai had been told that his son Nim-sai, or Foon, was dead. In order to ascertain the truth of this information, Ho Sai had insisted that the corpse be dug up for inspection. When the corpse was unearthed, Ho Sai was told that the face on the body had decomposed to such an extent as to be unrecognizable. He then instructed for the body to be turned over, and we learn that there is a triangular birthmark on the posterior of the corpse. Nim-sai has an identical birthmark on his buttock. On the basis of this birthmark on the corpse’s posterior, Ho Sai concludes that the body does indeed belong to Nim-sai, and is thus convinced that Nim-sai is dead. However, when he appears in the courtroom as a witness during Foon’s trial, he sees Foon standing on the dock and is struck by the uncanny resemblance between Foon and his concubine, an uncanniness expressed by the momentary appearance of the presumably dead concubine in the courtroom. The truth is finally out: Ho Sai finally realizes that Nim-sai is still alive, but the news comes as too much of a shock for him and triggers a heart attack. Ho Sai dies in the courtroom.
One of the most intriguing aspects of Lawyer, Lawyer is the prominence of the posterior in the film. When Ho Sai asked for Nim-sai’s corpse to be turned over, he said: “What do you see,” to which the answer was “His bum.” As Chan tries to make sense of the murder, he tells Foon: “the key to the whole thing is your bum.” Part of the humor of the film consists in a running joke about the number of objects that can be inserted into Foon’s anus: while in prison, Foon is required to place various objects belonging to other inmates into his anus for safe storage. When Chan and his wife examine the birthmark on his buttocks, various objects fall out of it. Towards the end of the film, Foon offers the guard who took care of him a piece of chicken that he had stored in his anus as a thank you present.
The omnipresence of anality in the film is not limited to the use of Foon’s posterior as evidence in the courtroom. When Chan and Foon first meet Yu Fa, the girl Foon ends up marrying at the end of the film, they quarrel over whether Chan and Foon sexually harassed her by touching her buttocks. She asks: “Did you guys touch my bum? Did you??”: the angry question forms the first sentence she utters to the two men. Foon then offers to make amends by allowing her to touch his own buttock. Moreover, the toilet humor which forms the basis of the film’s comic moments can be regarded as a manifestation of the narrative’s obsession with anality. For example, at the beginning of the film, Chan outmaneuvers his enemies by giving them laxatives; they are paralyzed by diarrhea and cannot continue their assault on Chan’s residence. Later in the trial, Chan’s wife draws on a Cantonese metaphor to compare English law to dirty diapers; she notes that if colonial law cannot differentiate between rules and justice, then it is worth less than the fecal matter on a baby’s diapers.
The film’s thematization of the buttocks is intriguing because it is so insistent. Fonoroff picks up on the film’s obsession with the posterior in his op-ed piece in the SCMP and argues that it forms one of the film’s major weaknesses:
For the most part, witty vulgarity is substituted by witless vulgarity, and the incessant scatological jokes eventually fail to shock. Lawyer, Lawyer is one of the most anally retentive movies ever to hit the screens, with chicken legs, dominos, rings, and any manner of objects inserted into a certain body part. One shakes one’s head in disbelief, but after a while the antics become as annoying as obnoxious children at play
(Fonoroff 1997).
He concludes that if the actor Stephen Chow “is to remain king of the comedy box office, he will need stronger material” than such anally-inspired jokes. Fonoroff’s article seems to say too much and too little at the same time: on the one hand, it hones in on what is most distinctive or unique about the film’s representation of law and detects some kind of significance to its focus on the body. On the other hand, he reflects insufficiently on this representation of anality and dismisses it as tasteless and childish humor. The film’s unrelenting insistence on the anus, both as a piece of legal evidence in the trial and as a presence in the plot more generally, suggests that the question of the body merits further analysis. Why is the film so obsessed with anality, and how can we think about this peculiar aspect of the film in relation to the particular moment in Hong Kong’s legal history in which it appeared?
One point of entry into the question of the representation of anality in Lawyer, Lawyer and its relation to the film’s legal–historical framework can be made via Lee Edelman’s notion of “(be)hindsight” in his seminal essay on the spectacle of gay male sex (Edelman 1991). This is because the body’s posterior, as it is represented in Ma’s film, is inextricably linked to the act of sodomy. The scene of anal penetration hovers just beneath the film’s surface. After Foon is arrested, he goes over with Chan the events which occurred at the Hong Kong Club, the scene of the crime, on the day of the murder. Foon remembers that someone blindfolded him and then pulled his trousers off. The incident forms the basis of a comical exchange between the two men arising from an initial misunderstanding of what happened:
Chan (in shock):
Foon:
Chan:
Foon:
Chan:
Foon:
Chan:
In order convince Ho Sai to appear in court, Chan asks his apprentice to deliver to him a drawing of a man with his anus prominently displayed on the page. Chan refuses to answer his apprentice’s question about the meaning of the drawing. Instead, he asks him: “are you excited?”, and the apprentice nods sheepishly, suggesting an undercurrent of homoeroticism at least amongst some of the characters in the film. Finally, Chan tries to counter the accusation of murder against Foon during the trial by arguing that the victim “may have lusted after Foon’s anus while he was alive, and then committed suicide out of frustration” when Foon did not respond to his advances. Anality in the film is intertwined with sodomy. While the corpus of texts which Edelman discusses – Sigmund Freud’s analysis of the Wolfman in From the History of an Infantile Neurosis, John Cleland’s Memoirs of a Woman of Pleasure, Tobias Smollett’s Adventures of Peregrine Pickle, and Jacques Derrida’s The Post Card – may at first glance seem far from the world of Hong Kong cinema, his productively wide selection of texts and his emphasis on the representation of gay male sex in the cultural domain more generally encourages the reader of Edelman’s essay to think about the implications of his analysis beyond the four immediate texts that he addresses.
Edelman posits that the logic of (be)hindsight is underpinned by the structure of the metalepsis, or “the rhetorical substitution of cause for effect and effect for cause, a substitution that disturbs the relationship of early and late, or before and behind” (Edelman 1991: 96; added emphasis). In other words, it constitutes a two-fold disruption of the binary logic with which we organize the world around us, spatial and temporal. Edelman notes that the anus, as figured in the scene of sodomy, becomes part of a structure which disrupts the notion of space or positions because it is an element of a scene in which the sexual act which is conventionally defined as happening from the front takes place from behind, so that notions of front and back, before and behind, become challenged. It therefore constitutes a “disorientation of positionality” (Edelman 1991: 103). More significantly, it disrupts the conventional logic of time because (be)hindsight, like much of psychoanalytic reasoning itself in the form Nachträglichkeit, “refuses any unidirectional understanding of the temporality of psychic development” and “questions the logic of the chronological” (Edelman 1991: 96). It is therefore also a “disarticulation of temporal logic” in which our conception of linear temporality based on oppositional terms such as “prior” and “post” or “before” and “after” is thrown into question. The male posterior is problematically represented in a variety of discourses because the scene of sodomy of which it forms an integral part challenges both our conceptions of space and time, and hence represents “a crisis of certainty, a destabilizing of the foundational logic on which knowledge as such depends” (Edelman 1991: 97).
Film scholar Audrey Yue first noted the significance of Edelman’s notion for the understanding of Hong Kong cinema. She argues that the disturbance to spatial and temporal logic which underpins the concept of (be)hindsight “resonates with Hong Kong’s identity crisis during the transitional years leading up to the handover” (Yue 2000: 364). Yue’s point is worth quoting in full:
The signing of the Sino-British Joint Declaration in 1984, which authorized Hong Kong’s return to China, produced 1997 as a form of consciousness which anticipated loss, separation, and reunification. But the direction forward was also a movement back to where it had already been: as a British colony in cessation, Hong Kong was to be reunited with China, its “motherland.” 1997 was thus marked as a turning point involving a paradox of time and space: the movement towards this moment finds itself on the other side (post-), but at the same point that it was before
(pre-) (Yue 2000: 364).
In other words, the transitional years were marked by a disruption of time; the temporal axis which normally forms a crucial part of conceptions of identity was reshaped by the impending return to a past which was yet to come in the future. At its core, “Hong Kong’s identity crisis […] was marked by its inability to distinguish the ‘pre-‘ from the ‘post,’ or the front from the back”: precisely the disruption of binary logic characterized by Edelman’s notion of (be)hindsight (Yue 2000: 365).
Yue’s analysis is mainly focused on films produced in the late 1980s, but its deployment of Edelman’s notion as a means of thinking about Hong Kong cinema can be extended to encompass the question of the representation of the law and legal evidence in Lawyer, Lawyer (Abbas 1997; Marchetti 2007).3 This is because the historical moment at which Lawyer, Lawyer appeared can be said to be marked by a disruption of time in the legal realm in Hong Kong. This disruption is epitomized by the comments of Audrey Eu, the Chairman of Hong Kong’s Bar Association at the time of the handover in 1997 (and who bears no relation to the film scholar above whose name is pronounced the same way). Commenting on a legal judgment on the ability of the local courts to question the decisions of the National People’s Congress, she criticized the Chief Judge for adopting a “backward-looking” interpretation of the law and argued that his approach had been insufficiently “forward-looking” (Li 1997). Eu argued that the court reached its decision “by a backward-looking process of considering Hong Kong under the colonial rule” – that is, a process of pre-handover reasoning – even when territory’s new mini-Constitution allowed it to lay the foundations for a new conception of the relationship between Hong Kong’s law courts and their sovereign – a forward-looking judgment made possible by the post-handover state of affairs. Eu’s contention is that the pre-handover reasoning is wrongly positioned; as an understanding of the law from the past it has no place in judgments which would be binding on post-handover Hong Kong in the future.
It is necessary to probe deeper into the legal-historical context in which the film appeared. Eu’s comments are symptomatic of the temporal disruptions at the time of the handover, a reflection of the subversion of the notions of “front” and “back,” before and after in the legal realm. What, then, constituted such disruptions in that period? There were two major legal controversies symptomatic of such disruptions at the time of the film’s appearance in 1997: they concerned the validity of laws enacted or adopted before 1st July, 1997 in post-handover Hong Kong, and the problem of retroactive laws immediate after the handover. Both of these controversies reflected the ways in which the law addressed the difficult question of time at a point where Hong Kong was moving back to the future, from the past of being a British colony and towards a future of reunification to the country it was once part of.
The question of the validity of pre-handover laws in post-handover Hong Kong arose in the unlikely context of trial over a conspiracy to pervert the course of public justice; the defense lawyers argued that their clients could not be tried because the charges against them had ceased to exist from the moment Hong Kong ceased to be a British colony (Parsons 1997a). There were two issues at stake: first of all, it was argued that the Provisional Legislative Council, the legislative body which was formed as a result of the breakdown of talks between Britain and China, was not a legally valid body. This would mean that the Reunification Ordinance, which provided for the continuation of pre-handover laws in post-handover Hong Kong, was not passed by a legitimate body and would have no effect. The result would be that in the immediate post-handover period, Hong Kong would become a bizarre lawless zone in which the laws which existed prior to the handover would cease to have effect. As one lawyer argued in the Court of First Instance at the time, “there is no common law in existence within the Special Administrative Region” (Parsons 1997b). Second, it was argued that even if the Provisional Legislative Council was to be regarded as a legally legitimate body, it had failed to explicitly adopt the pre-handover laws and so the laws still ceased to be operative after the transfer of sovereignty. According to this argument, the use of the word “shall” in the part of the Basic Law which states that the common law “shall be maintained” in Hong Kong implied the need for a formal adoption of pre-existing laws which ruled out the possibility of their automatic continuation from July 1, 1997 (Parsons 1997c). The legal debate generated widespread anxiety, because on it hinged the very existence of much of Hong Kong law. As Daniel Fung, the Solicitor General at the time of the handover noted, the court case could open up a “legal vacuum,” a bottomless abyss into which the entirety of the judicial edifice could fall (Parsons 1997d). Patrick Chan, the Chief Judge who ruled on the case in the Court of Appeal, echoed Fung’s sentiment when he noted that “even one moment of legal vacuum would lead to chaos” (Buddle 1997a). Underlying the questions about the legality of the provisional legislative body and the need for the formal adoption of the pre-handover law is anxiety about the temporal disturbance within the law which had been created by the retrocession: what was at stake was the question of whether the past, in the form of pre-handover laws, which have a presence in the legal system of the future, that is, of post-handover Hong Kong, a question which threatened to destabilize the binary opposition of “pre-” and “post-,” past and future in the law. This destabilization of temporary categories received more explicit articulation when Fung noted that a court ruling against the legality of the Provisional Legislative Council would result in “an absurdity” whereby the court’s decision to make the legislative body a nullity would itself become void, but if the court itself became a nullity then its ruling against the body would cease to exist and hence make the Provisional Legislative Council a legally valid entity again. He described the scenario as a “chicken and egg situation.” Fung’s metaphor is a telling one for it underscores the temporal disturbance characteristic of the logic of (be)hindsight: a “chicken and egg situation” is one in which it is impossible to differentiate between the beginning and the ending; it therefore has the structure of a Mobius loop central to Edelman’s analysis, a structure “whose front and back are never completely distinguishable as such” and which “represents and enacts a troubling resistance to the binary logic of before and behind” (Edelman 1991: 105). The debate about the continued presence of laws from the colonial period in the Special Administrative Region was indicative of, and indeed driven by, a profound problematization of time brought about by the retrocession. In light of the situation, is perhaps not surprising that Kevin Egan, one of the defense lawyers involved in the corruption case, called the situation a “preposterous” one (Buddle 1997b). As Edelman and Yue both point out, “preposterous” originally meant “inverted” or “placed in the wrong order” (prae = before, posterus = later). Egan’s comment arguably expresses the temporal conundrum of the law at the time, though he may not have been directly aware of the word’s etymology.
The second legal problem Hong Kong was faced with concerned the potential retroactive effect of its laws. The problem arose because a gap of several hours was to be opened up between the transfer of sovereignty from Britain to China at the stroke of midnight on 1 July 1997, and the reconfirmation of laws at the first meeting of the Provisional Legislative Council several hours after the handover ceremony. Without such reconfirmation, the laws cannot be deemed to have come into effect. This created a curious situation in which those few hours between China’s resumption of sovereignty and the first meeting of the Provisional Legislative Council fell outside the reach of the laws which were yet to be reconfirmed at the legislative body’s first meeting. In order for these laws to have effect during that time window, they had to be given retroactive effect, meaning that they would be operative backwards in time, prior to the moment of their reconfirmation. Of particular controversy were laws relating to public order: technically, people who choose to protest against the mainland Chinese or Hong Kong government during that time gap could not be prosecuted for disturbance to public order because the laws under which they would be prosecuted would not yet have come into effect. Retroactivity is a concept “generally held to be alien to the common law”; the law is only supposed to apply forward temporally (“No Going Back”, 1997). However, the Hong Kong government tried to argue that laws passed at the first meeting of the Provisional Legislative Council could be operative against the current of time. Elsie Leung, the Secretary for Justice at the time of the handover, noted that “if someone deliberately makes use of the few hours of legal vacuum, I don’t think they should complain about the law having retroactive effect” (Choy 1997). Many people disagreed with her view. The South China Morning Post noted in its editorial that “it would be a breach of legal principle of arrest and prosecute people for undertaking an act which was not illegal at the time it was committed, even though that act would become illegal later that same night.” (“No Going Back”, 1997) It cautioned against such a policy of “retroactive retribution.” A law lecturer at the University of Hong Kong adopted a similar position when he noted that “as far as the Basic Law is concerned, if they [the Provisional Legislative Council] pass that law at 3am, then at best it is valid at 3am. It cannot be a minute earlier.” (Choy 1997) On one level, the debate over the retroactive applicability of certain laws in post-handover Hong Kong concerns the question of the rule of law. On another level, however, it can be read as a symptom of anxieties over temporal disarticulations brought about by the handover: the application of future, as-yet-unenacted laws to one’s past behavior constitutes a collapse of oppositional temporal categories; the linear order of “before” and “after” becomes interrupted in that those legal rules which exist on one side of the temporal divide separating the first meeting of the Provisional Legislative Council from the period immediately before that meeting now exist on the other side; the future exists in the past and disrupts the distinction between past and future.
The significance of Lawyer Lawyer’s insistent thematization of the body’s posterior begins to emerge when the film is read against the disruptions of legal time in Hong Kong at the moment of its appearance in 1997. The film’s obsession with the anus, and especially the prominent place it gives that body part as a form of legal evidence in the courtroom, can be understood as a response to the temporal disturbance in the law at the time. The most intriguing aspect of the posterior in the film is that it is used as evidence for ascertaining the identity of Foon, or Nim-sai. When Ho Sai attempts to establish the true identity of the corpse, he does so based on the birthmark found on the buttock of the body; he believes that Nim-sai really is dead because the corpse has the same birthmark on the cheek of its anus. He makes explicit the basis of his reasoning when he is cross-examined by Chan in court:
Chan:
Ho Sai:
[…]
Chan:
Ho Sai:
Chan:
Ho Sai:
Chan:
Ho Sai:
Ho Sai thinks Nim-sai is dead because he saw the corpse’s behind. His method of establishing identity can be read as a literalization of the logic of (be)hindsight: the usual method of identifying someone is by looking at that person’s face; social conventions dictate that our face is the part of the body we show the world, and that the “front” is the side with which we establish relations with the people around us. In Lawyer, Lawyer, however, Ho Sai attempts to establish his son’s identity by looking at the body’s posterior; the “back” or the “behind” is the side that is used for the ascertainment of identity. In other words, Ho Sai’s method of establishing his son’s identity places at the forefront a body part which ought to be placed at the back, while relegating the body part which ought to be displayed prominently at the front – the face – to the back, because the corpse’s face had decomposed to such an extent that it could not be relied upon for the purposes of identification. What ought to be fore grounded is therefore placed in the back, and what ought to be placed in the back is now in the front. Such a disruption to the logic of “before” and “behind,” “anterior” and “posterior” in the establishment of identity in the film can be interpreted as a reflection of the crisis of identity which Yue discusses, a crisis marked by the “inability to distinguish ‘pre-’ from the ‘post-,’ the front from the back” and which “constitutes modern Hong Kong’s foundational logic,” a crisis underpinned by the logic of (be)hindsight (Yue 2000: 372–373).
However, Ho Sai’s use of the posterior as evidence for identifying Nim-sai turns out to be misguided because, of course, it leads to a case of mistaken identity: the birthmark on the buttock of the corpse is fake, and he reaches the wrong conclusion. The mistake comes to light in the courtroom: as he approaches the witness stand, he sees Foon standing in the dock, and is struck by the resemblance between the defendant and his concubine. The surprise is underscored by the cinematography: Ho Sai’s movements are shown in slow motion as he ponders over the resemblance, and the camera zooms in on Foon’s face as the truth dawns on the witness. Ho Sai is so dumbfounded that he cannot complete the oath on the witness stand; he places his hand on the Bible but is unable to speak because he cannot help but stare at Foon.
It is thus the front side of the body which finally allows the truth to come to light: it is upon seeing Foon’s face in the courtroom that Ho Sai correctly identifies him as his long-lost son Nim-sai. When asked whether he had seen Foon before, Ho says: “No, but he looks a lot like Yu-fa, my concubine.” Privileging the face leads to the reunion of father and son; privileging the backside leads to a case of mistaken identity. Indeed, the reliance on the anus as legal evidence can lead to death: when Foon drops his trousers in the courtroom to prove to Ho Sai that he, too, has the birthmark, Ho-sai is so overwhelmed by knowledge that his son is still alive that he suffers a heart attack and dies. The trial scene in the film therefore seems to suggest that one should not adopt a logic of (be)hindsight when it comes to matters of law: injustice comes about when what ought to be in the back is placed at the front, and when what ought to be in the front is relegated to the back. It is only when we follow the conventional method of identification by privileging the face and placing the posterior where is belongs that we can prevent the villain Ho Chung from usurping the family fortune. In the context of the legal events taking place in Hong Kong in 1997, the film at first glance seems to lend itself to a reading as a critique of the temporal disruptions plaguing Hong Kong law at the time of the handover. In other words, the fact that Foon’s true identity as Nim-sai is only established when the frontal logic is restored and when the fake birthmark on the corpse’s behind is dismissed as unreliable evidence in the trial seems to suggest that the best way forward for Hong Kong would be for the law to get its temporal settings in order; a legal system with its time out of joint would only lead to further problems and disruptions for the territory after the transfer of sovereignty.
However, such a reading of the film as a critique of the temporal disturbances in the law is problematic because despite the revelation of the truth, Foon is still put to death. The outcome of the trial turns on a procedural technicality: even though Ho Sai had admitted that Foon is his son, his testimony cannot be admitted because he had failed to take the requisite oath before identifying Foon; Ho Chung reminds Chan that “Ho Sai’s hand was on the Bible, but he had not yet spoken the words of the oath.” He then argues that the jury should treat the testimony in such a way “as if the words had not been spoken at all.” Since Ho Sai’s testimony is discounted, Chan ends up with insufficient evidence to convince the jury of Foon’s innocence. Foon is convicted of murder and is sentenced to death by hanging.
The revelation of the truth through the restoration of frontal logic, in the form of Ho Sai’s recognition of Foon’s face and the dismissal of the fake birthmark on the buttock of the corpse as evidence, ultimately does not lead to justice; Chan fails to save Foon in the courtroom. It is therefore problematic to read the film as a straightforward critique of the logic of (be)hindsight; the sight of the front side of the body does not guarantee justice. It is also necessary to think harder about how the film responds to the temporal disruptions in Hong Kong’s legal history. The following section will move from the trial scene to the scene of the sentence. It posits that rather than functioning as a straightforward critique of the law’s temporal dimensions, the film more subtly suggests how the law can capitalize on the logic of (be)hindsight to ensure a just outcome. At such a time of political transition as the restoration of a territory to its former sovereign, temporal disruptions in the legal realm may be inevitable. The film can be read as a comment on how one can operate within the temporal turbulence of the law at this point in Hong Kong’s legal history.
Foon is sentenced to death by hanging. The scene of the sentence, or the execution scene, forms the narrative climax of the film. There is a moment of dramatic tension as a guard places the rope around Foon’s neck. We also see Chan’s apprentice crying and Chan’s wife standing in silence and shock at the edge of the screen. All seems lost for Foon, but Chan manages to save his life at the eleventh hour. Depending on one’s point of view, Chan’s legal argument which saves his servant is either ingenious or perverse. His argument is as follows: the Chinese term for death by hanging is “wuan sao ji ying,” (環首之刑), which literally means “a sentence whereby a hoop is placed around one’s neck” (wuan (環) = hoop or circle, sao (首) = neck, ji (之) = of, ying (刑) = punishment or penalty). Chan argues that since the rope had already been placed around Foon’s neck, the sentence had already been carried out to the full according to the strict letter of the sentence; nothing in the expression “wuan sao ji ying”(環首之刑) stipulates that the hoop needs to be tightened. Chan draws a distinction between “wuan sao ji ying” (環首之刑) and “wuan sao sei ying” (環首死刑), a formulation that would have made the requirement of the defendant’s death explicit. Since the sentence had already been carried out to the full, there was nothing left for the judge to do but to release Foon.
Chan’s argument hinges on the precise wording of the sentence. It is a powerful mode of legal reasoning because it turns the judge’s vision of the law against him. In the trial scene, the judge had insisted that Chan must adhere to the strict letter of the law; it was for this reason that Ho Sai’s testimony was dismissed. In the execution scene, Chan appropriates the judge’s legal reasoning for his own use by insisting on the distinction between “wuan sao ji ying” (環首之刑) and “wuan sao sei ying” (環首死刑). He also appropriates the judge’s language by adopting his sentence structure: just as the judge had said that he couldn’t help Chan with his case because one must stick to the letter of the law, Chan here tells the judge that ‘the law is the law, and not a single word or punctuation can be changed” so Foon must be set free. Moreover, just as the judge had asked Chan not to bring shame on his Chinese compatriots during the trial, Chan here warns the judge not to pronounce a judgment arbitrarily lest he “bring shame on his ‘Great British Empire’.” Chan’s appropriation of the judge’s language can be interpreted as a postcolonial strategy of resistance, through which he learns the colonizer’s language in order to curse him with it.
The scene’s engagement with the question of legal temporality begins to surface when one thinks about the genesis of Chan’s interpretative strategy. How did Chan come up with the idea of turning the judge’s own reasoning against the colonial legal system? As Foon is led up to the execution stand, the camera cuts to the stairwell where Chan was standing; the camera zooms in on his hand and we see him drumming his fingers against the banister as he ponders over how he could save his servant. The scene on the stairwell shows that Chan gave careful thought to his argument, and that he did not come up with it at the spur of the moment before the final execution order was given. Given that Chan’s argument is based on an ingeniously or perversely literal mode of interpretation, one point of entry into the question is to think about where else in the Law and Humanities canon one may find such a mode of interpretation. Indeed, Chan’s peculiar way of reading the sentence for murder in the Qing Penal Code in the film is arguably reminiscent of the most famous scene of interpretation in Law and Humanities: the trial scene in William Shakespeare’s The Merchant of Venice. In that scene, the merchant Antonio had signed a bond promising Shylock the Jew a pound of his flesh should he not be able to repay the three thousand ducats which Shylock lends him. Antonio borrows the money from Shylock in order to enable Bassanio to raise enough capital to woo Portia. In Act IV of the play, Portia appears in the courtroom disguised as Balthazar, a learned doctor from Rome. Shylock insists on adhering to the strict letter of the bond: it entitles him to a pound of Antonio’s flesh and therefore he would take a pound of flesh from him. Portia turns Shylock’s literal interpretation of the terms of the bond against him by stating that while he was entitled to take a pound of Antonio’s flesh, he would have to perform the impossible task of cutting exactly one pound of flesh without the assistance of scales for weighing the flesh, and of cutting the flesh without drawing any blood. Portia defeats Shylock’s claim by adhering even more closely to the strict letter of the bond than he does.
There are several structural parallels between Portia’s argument and Chan’s interpretative strategy: both Chan and Portia insist on an absolute fidelity to the letter of the law, the scene of interpretation forms the climax in both sets of narrative, and both Chan and Portia ruthlessly turn their opponent’s reasoning into a weapon against them. Beyond these structural parallels, there is a scene in the film which makes explicit the relevance of Shakespeare to Lawyer, Lawyer. In the penultimate scene, Foon tells Chan that he has sent his wife to England to study English literature:
Chan:
Foon:
Chan:
Foon:
Chan:
The scene then fades into another one, and as it does we see Chan continuing to expound upon Shakespeare. The reference to the playwright at first seems incongruous with the rest of the film, but when one thinks about the reference to Shakespeare in relation to the execution scene then its significance becomes apparent: the penultimate scene shows that Chan is an expert on the works of Shakespeare and is thus likely to have known about The Merchant of Venice. The case of Portia v Shylock can be said to be a precedent case on which Chan relies when formulating his argument in front of the judge.4
Chan’s use of The Merchant of Venice as a precedent case has important temporal implications. To cite a play from the Renaissance in late nineteenth-century Hong Kong is in effect to bring a case from the distant past into the present; the common law doctrine of precedent is based on the notion that current legal decisions should be guided by relevant cases from the past (Goldstein 1987; Duxbury 2008).5 However, the temporal dynamic at work is not a straightforwardly linear one, for decisions in cases are made with an eye to the future. As Portia notes, the right decision must be reached in Shylock’s case because “’Twill be recorded for a precedent,” and if wrongly decided “many an error by the same example/Will rush into the state.”6 In other words, a case that is wrongly decided now will affect judgments which are yet to come. The doctrine of precedent is premised on the assumption that cases from the past guide and can determine the outcome not only of those cases to be decided at the present time, but also of those to arise in the future. It would therefore not be an overstatement to say that the doctrine of precedent can be seen as a mode of reasoning which is underpinned by the structure of (be)hindsight: the judge or lawyer looks to the past in order to determine the outcome of the cases of the future. The future, in the sense of the outcome of cases which have not yet come about, is already in the past. The past, in the form of previous decisions, are already in the future; judges often acknowledge, as Portia does, that when a decision becomes part of the accumulated body of judgments from the past it will always potentially reappear in a future court case. The future is guided and determined by the past and the past is always already imagined to be in the future: the temporal dynamic of the doctrine of precedent can be said to conflate the “before” and “after,” the “front” and the “back.” In an incisive critique of the Court of Appeal’s decision on the case about the conspiracy to pervert the course of public justice discussed above, legal scholar Johannes Chan laments that the judgment “will haunt our legal system for a considerable period and will have far-reaching consequences” (Chan 1997: 387; Chen 1997).7 His comment captures the temporal dynamic of the common law: the past decision will always be in the future as a ghostly presence, past and future become mutually imbricated and the traditional conceptual divisions between them loose their hold. A further comment on the temporality of the law can be found in Shoshana Felman’s work on historic trials. She posits that the logic of legal precedent be interpreted as a form of traumatic repetition, such that “legal memory is constituted […] by a forgotten chain of cultural wounds and by compulsive or unconscious legal repetitions of traumatic, wounding legal cases” (Felman 2002: 57). Trauma also represents a disruption of the linear conception of time, as the past repeats itself in the present and victims of trauma need to work backwards in order to understand the cause of their symptoms. Felman’s identification of the traumatic framework of the law can thus be understood as an implicit recognition of the temporal disturbance which characterizes the doctrine of precedent. The temporal structure of the law has never been a linear one, and it took a momentous legal–political event such as the retrocession of Hong Kong from Britain to China to bring out the questions of time in the law. Chan’s use of the case of Portia v Shylock from The Merchant of Venice as a precedent case underscores the temporal dynamic at work in the common law: Foon’s future lies in a case from the distant past of the Renaissance, while the case itself was formulated with an understanding that it would be cited in the future. In the encounter of Ma’s Hong Kong film and Shakespeare’s play, we witness the disruption of temporal positioning which is inherent in the common law.
Following the scene of the execution, the court reconvenes to decide on Chan’s literal interpretation of the law. In the same courtroom in which Foon was first sentenced to death, the judge now reverses the decision: “The final decision of the court is that the sentence has already been fully carried out. Foon can now regain his freedom.” Amidst the cheering of Foon and his supporters, the guards close in on Ho Chung and tell him that he is to be tried for attempted murder. The murderer will get the punishment he deserves and the innocent man is set free. Ultimately, it is Chan’s use of the precedent case of Portia v Shylock from Shakespeare’s play which leads to a just outcome. The disruption of the linear structure of time, together with the questioning of terms like “before” and “after” which enable this linear structure, does therefore not necessarily always lead to turmoil. Through his deployment of a past case, Chan’s capitalizes on the complex temporal modes of the doctrine of precedent to save Foon. Rather than functioning as a critique of the temporal disruption in the law associated with the retrocession, Lawyer, Lawyer can be read as positing a positive deployment of the notion of (be)hindsight. Disturbances in legal time may be inevitable as Hong Kong transforms from a British colony to a Special Administrative Region of China, but the Hong Kong lawyer does not need to fear them. Instead, he can embrace the logic of (be)hindsight, of temporal and positional scrambling, that is part and parcel of the law in this period of change in Hong Kong’s legal history, and through his ingenuity turn it to his advantage. Through Chan, the film seems to suggest that the Hong Kong lawyer can embrace the temporal disturbances in the law in a way which ensures that justice is done even in a time of political, legal, and temporal uncertainty.