12.
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Before passing to the question of legislation,
it is necessary to refer to Article XIII (1) of the Letters
Patent which reads:
13.
"The Governor, in Our name and on Our behalf,
may make and execute grants and disposition
of any lands within the Colony that may be
lawfully granted or disposed oft by Us".
I mention that provision because whether a
purported grant is lawful could be the subject of challenge
in the Hong Kong courts by means of declaratory proceedings.
Legislation
14.
Legislation is the only way to solve this dilemma.
The Sevenoaks case, referred to above, confirms that what
parties cannot achieve by contract may sometimes be
achieved by legislation.
Jessel M.R. (p. 635) said:
"An Act of Parliament has power to create interests which
were unknown to the common law and which could not be
created between individuals by contract".
15.
In the absence of constitutional problems, we
The
could, by legislation, cope with the difficulties I have
referred to. But there is a further difficulty.
Hong Kong legislature does not have the power to legislate
for what at present we accept as being, post 1997, legally
part of China. Article VII of the Letters Patent confers
power to "make laws for the peace, order and good
government of the Colony".
16.
If we were to legislate, the validity of the
legislation could be challenged in the Hong Kong courts
and it perhaps would be challenged in the context of lease
enforcement, re-entry or maybe that of Crown lands resumption,
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