TNAG-2334-FCO40-3397-Future-of-Hong-Kong-Crown-Proceedings-Ordinance-1991 — Page 23

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prepared to go along with this on condition that in return the Crown received the right to sue Hong Kong residents and their insurers in local courts. It subsequently transpired, however, that MOD's legal advice had been faulty and that there was in fact nothing in the Crown Proceedings Ordinance as it stood which prevented the Crown in right of the UK from sueing Hong Kong residents in tort. It is not clear to me from the file whether MOD are still prepared to go along with the amendment given that there is now no advantage in it for them. (I shall continue my researches before we approach them direct).

6.

As it developed, the proposal also shifted from covering only British Forces to covering all HMG agents. The file shows that BTC and UKREP JLG were consulted and had no objections but I had not yet found evidence that the PSA have been approached.

7. A second consideration when this proposal first arose was that the amendment to the Crown Proceedings Ordinance might influence the drafting of the Basic Law, particularly Articles 14 and 22: these state respectively that members of the garrison and personnel of CPG offices shall abide by the laws of the SAR. We understood from meetings between Chinese and British legal experts that this was intended to mean that these people should be subject to the jurisdiction of SAR courts. But we felt that there should be an enabling provision in the Basic Law to authorise SAR laws spelling out how this should be done. The Basic Law has of course now been promulgated and no such enabling provision incorporated. But the general point remains: that the amendment might serve as a precedent for Hong Kong people to sue members of the PLA in Hong Kong courts after 1997.

In deciding whether to procede with this proposal, I think we need to consider:

8.

a) whether there is still a practical need for the

amendment or whether Hong Kong could manage without it for another 6 years:

b)

whether there is real hope of the amendment setting a precedent for SAR law. If there were, it would be a strong reason to go ahead. But it does seem possible if not likely that the Chinese will object to observing a precedent set only 6 years earlier when a different situation had prevailed for decades.

CODE 18-77

RIDALL TG

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