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MDHIAN 1035
BE
SWALLOW. BUT WE HAVE TO BEAR IN MIND THAT THE GENERAL SCHEME OF
ARRANGEMENTS ENVISAGED IN PARA 4 OF FIRST TUR IS ALREADY A
SUBSTANTIAL DEPARTURE FROM THE GENERAL PRINCIPLE THAT IT WOULD FOR THE COURTS TO DECIDE, INDEPENDENTLY AND IMPARTIALLY, TORTIOUS CLAIMS . WE ALSO NEED TO ENSURE THAT WHATEVER ARRANGEMENTS ARE
AGREED WITH THE CHINESE THEY MUST ALSO BE CAPABLE OF COMMANDING
THE CONFIDENCE OF HK PEOPLE. WE JUDGE THAT THE LEAST THAT IS
NECESSARY IS FOR THE ARBITRATOR TO BE A HK JUDGE, WHO WOULD BE SEEN TO BE INDEPENDENT AND IMPARTIAL. WE COULD, HOWEVER, CONCEDE THAT THE PANEL OF JUDGES FROM WHOM THE ARBITRATORS WOULD BE CHOSEN BY
THE CHIEF JUDGE OF THE SAR SHOULD REQUIRE THE ENDORESEMENT OF THE CPG.
3.
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ON PARA 2 OF SECOND TUR, WE AGREE THAT WE SHOULD WRITE UP THE PRINCIPLES'' AND PASS THEM TO THE CHINESE IN ADVANCE OF DISCUSSIONS IN THE NEXT LEGAL EXPERTS MEETING. HOWEVER, AS THESE
''PRINCIPLES'' RAISE IMPORTANT LEGAL ISSUES WE SHALL NEED TO CLEAR
THE LINE WITH EXCO BEFORE WE DO SO. WE AIM AT SEEKING EXCO'S ADVICE AT ITS MEETING ON 5 JANUARY, WHICH IS THE EARLIEST MEETING AFTER THE CHRISTMAS BREAK. (THE ONLY EXCO MEETING BEFORE THEN IS ON 22 DECEMBER, BUT THE AGENDA FOR THAT MEETING IS ALREADY VERY FULL AND IN ANY CASE WE ARE UNLIKELY TO MEET THE DEADLINE FOR
SUBMISSION TO THAT MEETING.) IF THE NEXT LEGAL EXPERTS MEETING IS, AS WE PROPOSED, HELD IN THE WEEK BEGINNING 11 JANUARY, WE MIGHT STILL BE ABLE TO GIVE THE CHINESE A FEW DAYS TO DIGEST IF BEFORE
DISCUSSIONS ACTUALLY TAKE PLACE.
4. ON PARA 3 OF SECOND TUR, WE AGREE THAT ON THIS OCCASION WE SHOULD CONFINE OURSELVES TO PRINCIPLES AND A FEW ILLUSTRATIVE
EXAMPLS ONLY. IT IS IMPORTANT THAT WE DO NOT (NOT) PREJUDICE
THE LOCALISATION OF LAWS PROGRAMME.
I
I
5. ON PARA 4 OF SECOND TUR, OUR RESEARCH INDICATE THAT ''PETITIONS OF RIGHT WERE NEVER KNOWN IN HONG KONG. THE PETITIONS OF RIGHT
ACT 1860 DID NOT EXTEND TO HONG KONG CLAIMS AGAINST THE CROWN WERE
PROVIDED FOR IN HONG KONG'S OWN 'CODE OF CIVIL PROCEDURE' (ORIGINALLY AN ORDINANCE, BUT LATER CONTAINED IN THE RULES OF THE SUPREME COURT). WHEN THE CORWN PROCEEDINGS ORDINANCE WAS ENACTED THERE WAS THEREFORE NO NEED TO ABOLISH PETITIONS OF RIGHT. THE SOLE EXCEPTION WAS PETITIONS UNDER THE NAVAL PRIZE ACT 1864, WHICH DID EXTEND TO HONG KONG. WE ARE NOT FAMILIAR WITH THE IDEA OF PROCEEDINGS AGAINST NOMINAL DEFENDANTS. WE SHALL RESEARCH FURTHER INTO THE QUESTION OF COMPENSATION FOR USE OF LAND DURING
MILITARY OPERATIONS.
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