TNAG-2573-FCO40-3759-Future-of-Hong-Kong-adaptation-of-laws-1992 — Page 7

Hkc. 370/1?

Mr Marshall

HKD

pa 370/17

13

From:

Miss S Brooks

Legal Counsellor

Date: 27 November 1992

:

CC:

Mr Chamberlain, Deputy

Legal Adviser

ADAPTATION OF LAWS: CROWN IN RELATION TO LAND AND NATURAL RESOURCES

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The draft consultation paper prepared for the Chinese side which is set out in Hong Kong telno 2605 of 2 November contains some serious difficulties. It is not at all clear to me why it is necessary for this adaptation to be put into operation before 1997. The difficult problems which it raises would be solved if it were postponed and bacame a candidate for midnight adaptation. Hong Kong Government have given no explanation as to why it is necessary to make these changes before midnight on 30 June 1997. Unless they come back with some convincing reasons against postponement, I think that it would be best if this exercise became part of the midnight adaptation exercise. The three serious problems which I see with the proposals in the draft paper are set out below.

2. The first difficulty is that which Mr Chamberlain rightly pointed out in his minute of 4 November to you. The effect of most of the proposed amendments is that land now owned by the Crown in right of the Government of Hong Kong would be owned by the Government of Hong Kong which in effect are one and the same entity; in other words, no change would be brought about. The amendment to the effect that a) references to the Government in relation to land and natural resources do not mean that the land and natural resources are the property of the Government and b) that the Government is merely managing, using, developing leasing or granting land would be in contradiction to the other amendments. This latter provision is also a bit of a nonsense; apart from anything else, if the Government is leasing or granting land, this implies that it actually owns the land.

3.

The second problem is a problem that you have identified concerning the reference in the Basic Law, Article 7 to ownership of land and natural resources in the Hong Kong SAR by the state. The Ordinance would be in conflict with the Basic Law because, despite the amendment which would provide that the government does not own the land or natural resources but merely manages it etc, the fact is that the Hong Kong SAR Government would own the land after 1997 and not the PRC (given

/the

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