SECRET
50104
1
BECAUSE WE WERE NOT SURE IT WAS NECESSARY, AND WE WOULD NOT URGE
YOU TO PUT THE FORMULA FORWARD. WE HAVE DOUBTS, HOWEVER, ABOUT
THE REASONING IN THIS PARA OF TUR. IT IS TRUE THAT THE COURTS OF
THE SAR WILL APPLY THE COMMON LAW IN SO FAR AS IT DOES NOT
CONTRAVENE THE BASIC LAW. THE PROBLEM WITH THIS PARTICULAR
FORMULA IS THAT IT IS DESIGNED TO ESTABLISH IN THE BASIC LAW THE
NATURE OF THE HONG KONG COURTS' JURISDICTION IN RELATION TO WHAT
MAY BE LOOSELY DESCRIBED AS ACTS OF STATE. HOWEVER, IP, AS YOU
POINT OUT, A FORMULA WHICH WAS NARROWER THAN THE COMMON LAW
SATISFIED THE CHINESE, NO HARM WOULD BE DONE. AND WE SEE NO
DIFFICULTY ABOUT ADDING THE WORDS PROPOSED BY
PARA 10 OF TUR. THE POINT WE WERE MAKING HERE WAS
DESIGNED AS AN ATTEMPT TO INSURE AGAINST THE POSSIBILITY THAT
CHINESE LAWS OTHER THAN THE BASIC LAW WOULD HAVE EFFECT IN HONG
KONG.
IT SEEMS TO US THAT, WITHOUT SUCH A FORMULA AS WE
SUGGESTED, IT WOULD NOT BE AXIOMATIC THAT THE SAR COURTS WOULD
HAVE JURISDICTION.
2.
OTHERWISE, WE ARE CONTENT.
HOWE
OCMIAN 0104
HONG KONG AGREEMENT: RESTRICTED
LIMITED
HD/HKD
HD/FED
RESEARCH D. (FE)
DEP.HO/PUSD
PS/MR RENTON
KR MCL RE
MR GILLMORE
-2--
Secret
COPIES TO:
MR FIFOOT, LEGAL ADVISERS
Redacted under FOI exemption 27(1)
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