M
the Crown cicliction over the N.T. So far as Hong Kong law is
the Crown's assertion of jurisdiction is to be
found in the N.T. Order in Council 1898 which has the effects
Conc. P
discussed above.
It follows that in my opinion so far as municipal (as opposed to international) law is concerned the Crown does not grant underleases (as suggested by Mr. Thornton in M. 3 paras. 9 15) and the consequences be there describes do not in strict law apply. However, this may be of little importance because, everyone for so long having fallaciously referred to "the lease from China" I have
little doubt that the arguments he there deploys would be debated in learned periodicals with the consequence that until the matter was tested and settled in court uncertainty (and hence a lack of commercial confidence) would prevail.
9
I do not agree, for the reasons I have given in Section I above, with Mr. Rushforth that the Hong Kong Government
is "free to grant leases of any duration over land in the leased territories". In my opinion it cannot without further prerogative legislation grant leases beyond 1997 and possibly cannot grant freeholds as each would be in conflict with the present limited claim to jurisdiction.
REASONING
The text of the 1898 Convention is set out in Vol.23
Laws of Hong Kong App. IV. Although the document there is headed "Lease of the New Territories" this would appear to have been
inserted by the Editor. The body of the document is headed
"Convention between G.B. and China respecting an Extension of Hong Kong Territory signed at Peking 9th June 1898 ". The recitals state "It has now been agreed between the Governments....... that the limits of British Territory shall be enlarged under lease", and "the term of this lease shall be 99 years.".
Whatever be the expressions used, the document is in
my view unquestionably a treaty between Governments, intended to affect sovreignty for a limited period just as a treaty of cession may do permanently. It is most certainly not, nor does it even