CONFIDENTIAL
Mr Wood Ente + pg. побаела
HKD
MKC 230
FROM:
DATE:
Paul Fifoot
14 December 1987
RECEIVED IN REGISTR
lowin
3 1 DEC 1987
DESK OFFICER INDEX
PA
2
THE BRADBURY TRUST
1. I agree with the line which the Attorney-General proposes to take at .I and .III. As regards the latter, I have assumed that the Hong Kong Bank Trustee Ltd is a custodian trustee and that the Trust is in fact managed by some Board comprising a number of individuals. A single corporate trustee, other than in the role of custodian trustee, would be highly undesirable.
2.
On .II, I think it would be utterly wrong for the Attorney- General to suggest that the Basic Law will have a bearing on the question and we should urge him in the strongest terms to drop that argument. Although a charitable trust has public law aspects (the role of the Attorney-General being one of them), it is not primarily a matter for governmental or administrative law. Further, insofar as it may be a matter to which statute law has any relevance, this would be a matter which falls within the autonomy of the SAR; see JD.86. The only relevant reference in the Basic Law should be draft Article 6 of Chapter I. By no means do we want it suggested that the Basic Law should go beyond that draft Article, and that can have no bearing on the question in II.
3.
As to the other arguments proposed by the Attorney-General, I think that a first question is whether the word "British" is still a relevant qualification as regards the application of the Trust Fund. Para 2 of Hong Kong telno 4691 says that the phrase "British charitable institutions registered in Hong Kong or the UK" has been held to mean by an Order of the court of November 1975 "Charitable institutions established in Hong Kong or in the United Kingdom recorded ... ". The sense of that, which may well be incomplete, is that "British" has dropped out as a qualifica- tion and all that is necessary to see whether the institutions are recorded for the purposes of two statutes, one Hong Kong,
If that is right, then "British" is no longer a relevant factor unless, for some reason, the trustees are now seeking to re-open the 1975 Court Order.
1s
4. If, however, "British" is still a relevant qualification, I would have thought that there is a further, and much more desirable alternative to those suggested in para 5 of TUR.
I would have thought that one could base an argument on "British" being used as a description of the management of the charitable institutions to be benefited. The kind of examples that come to mind are the British Schools of Archaeology in I believe Rome and Athens and there must be throughout the world a considerable number of charities for education purposes whichwere fouinded by British nationals and which have a predominantly, though by no means exclusive, British management. It would not, of course,
/matter
CONFIDENTIAL