TNAG-0943-FCO40-1162-Future-of-Hong-Kong-1980 — Page 72

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It fellows in my opinion that the beneficial effects indeterminate leases or of leasc: dated post 1997 could be Achieved with the help of the above rule. The Government could issue a periodic tenancy, say from year to year, containing all the, usuch covenauts in existing leases necessary for land management. Both the Government and the tenant would have the right to terminate on notice, but in the Government's case with a proviso inserted restricting such right. The restriction could be phrased to the effect that the right to terminate would be barred prior to a given date, say 2010, unless the premises were required for Government's own use; alternatively a more restricted reason could be adopted provided it was not so rare as to risk the Court holding it was equivalent to the situation in the Centaploy case. In practice the power to terminate for "own use" is less draconian than the "public purpose" under the Resumption Ordinance, which would remain applicable.

The grant of an annual periodic tenancy is clearly within the powers given in Article XIII of the Letters Patent and does not conflict with the N.. Order in Council 1898. It does not therefore require enabling legislation either in the U.K. or Hong Kong. The presence in the agreement of the curb on termination does not affect the essential nature of the tenancy, which remains one from year to year, which might indeed be terminated by the tenant before 1997 or by Government if the proper circumstances arose. Arguably also, because of its negative nature, the curb does not have implicit in it any assumption of post 1997 jurisdiction, in the same way as would the present grant of post-1997 rights in a lease to the year 2010; the first time post 1997 sovreignty will be claimed in the annual tenancy will be at renewal in 1996. Nor would the curb in such a tenancy be likely to be challenged in the courts för it would only be Government in whose interest it would be to argue that the curb was void.

Obviously such a tenancy in normal circumstances is not commercially so beneficial as a lease to a date certain; but it does appear to obviate the legal problems so far as such a lease is concerned if it were dated post 1997.

John Griffiths

(John Griffith Q.C.)

Attorney General