TNAG-0752-FCO40-956-Future-of-Hong-Kong-1979 — Page 113

12.

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Before passing to the question of legislation,

it is necessary to refer to Article XIII (1) of the Letters

Patent which reads:

13.

"The Governor, in Our name and on Our behalf,

may make and execute grants and disposition

of any lands within the Colony that may be

lawfully granted or disposed oft by Us".

I mention that provision because whether a

purported grant is lawful could be the subject of challenge

in the Hong Kong courts by means of declaratory proceedings.

Legislation

14.

Legislation is the only way to solve this dilemma.

The Sevenoaks case, referred to above, confirms that what

parties cannot achieve by contract may sometimes be

achieved by legislation.

Jessel M.R. (p. 635) said:

"An Act of Parliament has power to create interests which

were unknown to the common law and which could not be

created between individuals by contract".

15.

In the absence of constitutional problems, we

The

could, by legislation, cope with the difficulties I have

referred to. But there is a further difficulty.

Hong Kong legislature does not have the power to legislate

for what at present we accept as being, post 1997, legally

part of China. Article VII of the Letters Patent confers

power to "make laws for the peace, order and good

government of the Colony".

16.

If we were to legislate, the validity of the

legislation could be challenged in the Hong Kong courts

and it perhaps would be challenged in the context of lease

enforcement, re-entry or maybe that of Crown lands resumption,

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