CODE 18-77
Mr K Chamberlain
Deputy Legal Adviser K173
pra
Reference.
©
CONFIDENTIAL
ilkc 370/17
ADAPTATION OF LAWS IN HONG KONG: THE CROWN IN RELATION TO LAND AND NATURAL RESOURCES
2
1. Thank you for your minute of 4 November commenting on the draft paper contained in Hong Kong telno 2605.- My apologies for troubling you again on this subject but perhaps you could help with what seems to me to be a problem in Hong Kong's proposals regarding the ownership of land and natural resources pre- and post-1997.
2.
My understanding of the position is as follows. At present any land or natural resource owned by the Crown is managed by Hong Kong Government in accordance with the Letters Patent. The Hong Kong Government is indistinguishable from the Crown in matters of ownership because Hong Kong Government is merely an emanation of the Crown in right of government of Hong Kong. Any land or natural resource that is said to be owned by Hong Kong Government is in fact ultimately owned by the Crown, and this will remain true up to 30 June 1997.
3.
From 1 July 1997 Article 7 of the Basic Law will come into force: "The land and natural resources within the Hong Kong Special Administrative Region shall be State property. The Government of the HKSAR shall be responsible for their management, use and development and for their lease or grant to individuals, legal persons or organisations for use or development. The revenues derived therefrom shall be exclusively at the disposal of the government of the Region."
4.
Thus the handover transfers ownership from the Crown to the People's Republic of China: which in effect also is transferring ownership from the Hong Kong Government to the PRC. The Government pre-1997 is not the same entity as the Government post-1997: the latter is managerial.
5.
The problem with the proposed across-the-board replacement of "the Crown" with "the Government" is that although pre-1997 this is only a different way of referring to the same legal entity, post-1997 it means that the laws of Hong Kong will refer to "Government" ownership of land whilst the Basic Law explicitly states that land is owned by the State. Presumably the legal response would be that the State (through Article 7 of the Basic Law) is the same as the Government of the HKSAR in matters of
CONFIDENTIAL