CO537-3707 — Page 9

почер

are not ordinari resident in citten churia or H.K.

Should they han a right to fr for

one

Juriided

For the atter ?

الا

is to adopt alphabetical order, in which case

"British" comes before "Chinese". Perhaps we could reverse the order in one place and not the other. I agree, however, that the Memorandum should refer to the "Government of Hong Kong.

The draft exchange of notes is not sufficient as it stands, but it seems to me to furnish a basis for settlement. Paragraph 1 should, I think, expressly authorise the Trustees to make rules or regulations for specific purposes and to impose fines. Paragraph 2 certainly requires elaboration. In the first place I do not like "domicile" and suggest substituting "ordinarily resident". Further, supposing two or more persons are involved and they are not all ordinarily re- sident either in Hong Kong or China, what court would have jurisdiction? In criminal cases pre- sumably there would be separate trials unless other- wise agreed, but in civil cases the position would be more difficult. It would not suffice even to select a court of the residence of the defendant, because there might be two or more defendants with difference residences. One possible solution would be to give the court of any defendant juris- diction and allow the plaintiff to choose one court or the other, but this would mean that a Chinese plaintiff could issue a Hong Kong defendant British subject in the courts of China and I am not sure we should like that. If that would be unacceptable, then the only course I can think of is the one mentioned above, i.e., to give the court of the defendant jurisdiction and if there were both Chinese and British defendants the plaintiff would have to sue in the courts of both countries if he wanted to pursue his remedy against all the defendants.

But there romains the questions of parties who

Presumably paragraph 2 means that h substantive law to be applied would be that of the residence of the defendant, so that in the City of Kowloon, would be two systems of law in force applying to different persons, That would not appear to be very satisfactory but the position is similar in the New Hebrides.

Finally, I agree that it would be necessary for any Agreement to be given the force of law so far as Hong Kong is concerned. We could tell the Chinese that this is necessary according to Hong Kong law and whether they take similar action or not themselves is a matter for them. The Hong Kong Ordinance could be quite simple: we could schedule the Agreement and provide that it should have the force of law.

This brings me to the most important point, namely that to keep the exchange of notes secret as appears to be intended is quite impossible. They would give jurisdiction both to courts and the Trustees and would form the basis of legal rights and obligations of private persons. It is essential, therefore, that they should be made public if they are to have any operation.

Lattended

Alger

4th May, 1948.

meeting at the Foreign Offres on the

F