- 13.
34.
Ordinance extends the scope of the Crown's power to expropriate
land in the New Territories beyond the undertaking made by the
Crown in the 1898 Convention, then one has reached the point
where the High Court in Hong Kong might declare the Ordinance
to be ultra vires and void.
If one finds that the Crown Lands Resumption
35.
A similar argument was put forward in Jerusalem-Jaffa
District Governor -v- Suleiman (1926) A.C. 321 where the Privy
Council held that the Supreme Court of Palestine had the power
to declare an Ordinance of Palestine to be ultra vires and void
as being repugnant to the terms of the League of Nations Mandate
under which Britain administered Palestine. In that case an
Order in Council authorized the High Commissioner to promulgate
such Ordinances as might be necessary for the peace good order
and government of the country and were not inconsistent with the
The only distinction between the situation in Palestine,
Mandate.
But,
as set out in the Jerusalem case, and the constitutional position
in Hong Kong is that the Order in Council of 20th October 1898
did not specifically say that the laws for the New Territories
should not conflict with the Crown's treaty obligations.
in our view, it would be almost impossible for the Crown to
argue that a law which is clearly repugnant to the provisions.
of a treaty is nevertheless for the peace, order and good
government of the Colony.
6.
Here, the argument on repugnancy can be quite
simply put. The Crown Lands Resumption Ordinance has given
the Crown the widest possible powers of resumption for "public