TNAG-2877-FCO40-4149-Future-of-Hong-Kong-adaptation-of-laws-1993 — Page 194

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The Problem

5.

After 1 July 1997 the expression "the Crown" will have no meaning in the Laws of Hong Kong. If the laws were left unamended until then, there might be pressure to substitute "the State" (i.e. the PRC) which would be legally incorrect and also politically sensitive. It is therefore desirable whenever possible to amend references to "the Crown" well before 1997. Since the Crown' appears in many different roles in the Laws of Hong Kong, the only practical approach is to deal with each role in stages, if that can be done consistent with law and common sense. The Crown in relation to land is a topic that appears to be reasonably self-contained and on which a large measure of agreement with the Chinese side has already been achieved. Recent Ordinances dealing with land such as the New Territories Leases (Extension) Ordinance (Cap. 150) manage to avoid any reference to "the Crown", as does Annex III to the Joint Declaration. The problem is to identify which references to 'the Crown' in the Laws of Hong Kong relate to land and to decide whether appropriate legislative amendments to those references can be made before 1997. The Working Group was able to identify all the relevant references, and concluded that appropriate legislative amendments could be made immediately, subject to the matters discussed in the following paragraphs.

Separating 'land' from 'leases'

6.

At the meeting on 2 June it was agreed that there was a difficulty in referring to "Government land", since such a term might give the impression that the Government owns the land, which would not accord with the present position or with BL 7 after 1997. It was therefore agreed that the possibility should be examined of adapting only references to "Crown leases", leaving "Crown land" references to be dealt with later. The Working Group duly considered this possibility but early concluded that it would be impossible to separate out the Crown's rights in relation to leases from the Crown's other rights in relation to land, and that the problem of ownership appearing to be vested in the Government could be met by an appropriate legislative declaration.

7.

Section 6 of the Interpretation and General Clauses Ordinance (Cap. 1) reads

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"Where reference is made in any Ordinance to property and the expressions used in relation thereto imply that such property is owned by, or belongs to, the Government, or convey a similar meaning, such reference shall be deemed to refer to such of the property of the Crown of the description mentioned as has been appropriated to the use of the Government.".