TNAG-2967-FCO40-4246-Future-of-Hong-Kong-British-Consulate-General-inclusion-of--1993 — Page 43

R

HKD 406/13

15 JUL 1993

འཁའ་

Ms Barnes Jones

HKD

From:

Miss S Brooks

Legal Counsellor

Date:

8 July 1993

CC: Mr Savage, OED

34

BRITISH CHAMBER OF COMMERCE

1.

I

Mr Savage suggests that in order to avoid the requirement in Special Condition 13 of the PTG to seek the prior permission from the Director of Buildings and Lands to rent part of the future Consulate-General to the British Chamber of Commerce, the British Chamber of Commerce could be granted a licence. do not think that this solution avoids the requirement to seek permission. Special Condition 13 provides that "the Grantee shall not assign, mortgage, charge, demise, under-let, part with the possession of or otherwise dispose of or encumber the lot or any part thereof or any building or part of any building thereon or enter into any agreement so to do

At the very least, it would seem that a licence would "encumber" part of the building of the Consulate-General.

...

•

2.

Without knowing more about the licence, it is unclear whether it would be granted under English or Hong Kong law. I think it is likely to be granted under Hong Kong law. My knowledge of English land law is somewhat out of date, but the essence of a licence is that it is a permission given by an occupier of land to allow a licencee to do an act which would otherwise be a trespass eg lodge in his house. This particular licence would be a licence for value since rent would be paid. A right to exclusive possession (ie the right to exclude all other persons from the premises) is not normally a characteristic of a licence although there have been cases of licences involving such rights; it is the essence of a lease. It is likely that the British Chamber of Commerce may wish to have exclusive possession. Although a licence does not create an interest in land, I am concerned that if the British Chamber of Commerce does require exclusive possession of the space occupied by them, the licence might be construed as a lease. There is certainly previous case law to this effect, though these cases may have been overturned in recent years.

3.

In conclusion, this is an ingenious suggestion of Mr Savage, but I am not sure that the grant of a licence would succeed in avoiding the requirement in Special Condition 13 and there is a possible risk that it may be construed as a lease. If Mr Savage wishes to explore the licence idea further, I suggest that, if it is to be governed by English law, he consults his own departmental legal adviser and, if it is to be governed by Hong Kong law, that he consults Johnson Stokes and Masters. One aspect which would need consideration is the revocability of the licence.

Shelagh Brooks

Shelagh Brooks