TNAG-0943-FCO40-1162-Future-of-Hong-Kong-1980 — Page 21

5

(ii)

we see no reason why an express curb.........should be rejected as repugnant.....It follows that in a periodic tenancy a similar curb for ten, twety or fifty years should not be rejected as repugnant to the concept of a periodic tenancy......

"

Accordingly, I suggest that the Crown could grant land to its tenant for an annual or other periodic renewal, the tenancy agreement containing a clause that the Crown could not determine the tenancy within, say, twenty five or thirty years save for stated reasons. The reasons could be wide or narrow. (e.g. "required in the public interest" "required as an Airport", etc.).

or

(iii) In my opinion, such a grant would be valid and not subject to successful challenge in the courts, nor would it require legislation to bring it into effect. The grant of a periodic tenancy lasting until 1997 is obviously within presen powers and could not be challenged. The curb on re-entry expressly falls within Clay v. B.R.B. quoted above. presence in the lease could not invalidate the whole grant even if expressly extended to beyond 1997. The matter would be far less likely to go before the court in declaratory proceedings than would the question of validity of a post 1997 lease.

(iv)

Its

The grant of such a lease would not involve legislation either in Hong Kong or the United Kingdom although it would be necessary to obtain instructions from the Secretar of State pursuant to Article XIII(4) of the Letters Patent, as to date the instructions given have usually been to grant leases expiring 3 days prior to 1997. No problem would be anticipated about obtaining such Instruction, which are not public documents.

SECRET