CODE 18-77
Has
Su
ळू
CONFIDENTIAL
Mr Mcl
McLaren (HK&GD)
Futureof Hong Kong
1.
Reference
HKK 040/1
RECEIVED IN REGISTRY NO. 51 1 1 AUG 1978
DESK OFFICER
PA
#RY Action Liten
INDEX
No las
Jas
With reference to Mr Thompson's minutes of 24 and
24 and 25 July! there is no possibility of obtaining an opinion from the Law Officers by 17 August.
2. I have however myself given the problem further thought and on reflection have come to the conclusion (contrary to my initial impression), that the legal position is sufficiently clear to enable us to avoid, troubling them about it, at any rate at this stage.
3.
There are three questions concerning the grant of leases' going beyond 1 July 1997 that have to be examined:
4.
(a) is this permissible in international law - my answer here is yes, the UK have by virtue of the Convention of 1898
full rights of sovereignty up to 1 July 1997 and HMG can therefore carry out or authorise any transaction that is within the powers of a sovereign government, whether that transaction has consequences extending beyond 1 July 1997 or not, including the grant of leases;
(b) is this permissible under the Constitution of the colony my answer here is yes, Article XIII of the Letters Patent and the Royal Instructions contain no restrictions on the grant of leases;
(c) is this permissible under the municipal law of the colony
my answer here is yes, since I am not aware of any statutory provision of Hong Kong law that contains any relevant restrictions on the grant of leases and I see no reason why any such restrictions should arise at common law.
My conclusion therefore is that there is no legal impediment to the grant of leases extending beyond 1 July 1997. Should the Chinese Government resume possession of Hong Kong on or after that date without having entered into an agreement with the UK preserving such leases, they will have the option of letting them stand or of cancelling them under their own sovereign powers. The same option will no doubt apply to innumerable other traşnactions of the colonial government the effects of which will last beyond 1 July 1997. legal reason to worry more about the grant of leases than these other transactions, and of course one can hardly even speculate about what the Chinese authorities might do, beyond thinking that they are hardly likely to wish to unscramble everything.
5. You will appreciate that I disagree with the opinion of the Hong Kong Law Officers on this matter. They appear to conceive of the matter as governed only by the municipal law of real property, and to have overlooked the fact that the Convention of 1898 operates in international law and not in minicipal law. This error vitiates their whole opinion.
16.
CONFIDENTIAL