TNAG-0752-FCO40-956-Future-of-Hong-Kong-1979 — Page 87

CODE 18 - 77

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Reference

Mr Thompson, Hong Kong and General Department

THE FUTURE OF HONG KONG

1.

-HKK 040/1

INDEX

Nolas

65A

With reference to your enquiry of 17 July about possible precedents or parallel cases in other territories for the extension of under leases within the New Territories beyond the 1 July 1997, I regret to confirm that it has proved impossible in the limited time available to trace any examples or material which can confidently be said to have a direct relevance to the Hong Kong situation. I am, however, attaching two documents which may help to throw greater light on some of the difficult points which may arise in connexion with the Hong Kong problem.

2. As far as I am aware the Law Officers have not been consulted in the past on the question of leases going beyond 1 July 1997, but I will check Research Department's files again with this in mind and let you know immediately if they have, in fact, given any previous opinions.

3. Nobody in the Department has been able to cite an example of an administering power holding territory under lease from another State or only being empowered to administer it for a limited time in circumstances remotely resembling

those of the

New Territories. It has been suggested that if the leasing of bases applies there may be Caribbean parallels e.g. Turks and Caicos Islands (see attached papers on compensation payment for renewal of the agreement); no doubt the Legal Advisers are all too familiar with these examples and can say just how applicable they are in relation to Hong Kong.

4. You may find it useful to see the attached Research Department Memorandum, prepared in 1968, on three cessions of British Territory i.e. Heligoland (1890), Gambia and Los Islands (1904) and Jubaland (1924), or more precisely, that part of it describing the safeguards provided for the inhabitants in these cases, and their sufficiency. Again, strictly speaking, there is no close parallel with the New Territories but it refers to certain problems regarding property which will have to be taken into account there when the question of the extension of leases beyond 1 July 1997 is under consideration.

5.

With regard to the status of the New Territories, it is interesting to note the views of Sir Kenneth Roberts-Wray, former Legal Adviser to the Colonial Office, in his Notes on Hong Kong in Appendix I to his book "Commonwealth and Colonial Law" where, commenting on Basic Law, he writes as follows:-

"The Hong Kong Courts have held that the inapplicability or otherwise of English law is to be determined in the light of circumstances as they existed on 5 April, 1843; and that the Chinese customary law to be applied is that which obtained at the time when the Colony was ceded. These decisions have been criticised. In general, while Chinese law and custom are given effect in questions of family relations and inheritance,

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