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HCSA000037/1990
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Small Claims Tribunal Appeal No. 37/90
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HEADNOTE
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SMALL CLAIMS TRIBUNAL - ARREARS OF RENT - PREMISES IN KOWLOON WALLED CITY - JURISDICTION TO HEAR CLAIM
IN THE SUPREME COURT OF HONG KONG
SMALL CLAIMS TRIBUNAL APPEAL NO. 37/90
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BETWEEN
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FUNG Yuen-mui
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Applicant
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(Claimant)
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AND
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CHAN Kam-yee
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Defendant
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Coram: Hon. Bewley, J. in Court
Date of hearing: 12 February 1991
Date of handing down of judgment: 1 March 1991
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JUDGMENT
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1. This is an appeal from an order of the Adjudicator of the Small claims Tribunal dismissing a claim for arrears of rent, in respect of premises in Kowloon Walled City, for want of jurisdiction.
2. His reasons are set out in his judgment in these terms :
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"This Tribunal is of the opinion that the Kowloon Walled City may be a part of China constitutionally and, therefore, dismissed the claim for lack of jurisdiction.
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This Tribunal has considered the following constitutional documents :
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(i) |
Convention between Great Britain and China respecting an Extension of Hong Kong Territory (signed at Peking 9th June 1898). (Laws of Hong Kong Vol. 30 App. IV at pages I1 to I2];
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(ii) |
Order in Council of 20th October 1898[Laws of Hong Kong Vol. 30 App. IV at pages J1 and J2]; and
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(iii) |
Order in Council of 27th December 1899 [Laws of Hong Kong Vol. 30 App. IV at pages L1 and L2].
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From the Convention of 9th June 1898, it would seem fairly clear that jurisdiction within the city of Kowloon was still with Chinese officials "except so far as may be inconsistent with the military requirements for the defence of Hong Kong".
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The said Convention was confirmed by the Order in Council of 20th October 1898 at Article 4 therein. However the Order in Council of 27th December 1899 at Article 2 therein has revoked the earlier Order in Council of 20th October 1898 and declared the City of Kowloon to be part and parcel of the Colony of Hong Kong.
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Therefore, taking the three documents together, it would appear that the Convention of 9th June 1898 is still in force. However, the Order in Council of 27th December 1899 is also in force. But the two are conflicting. I take the view that the Convention should take precedence as it was an agreement between China and Great Britain whereas the Order in Council was only a unilateral declaration by Great Britain."
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3. With respect to the Adjudicator there is overwhelming authority to the contrary.
4. In Blackburn v. AG [1971] 1 WLR 1037 the plaintiff brought two actions against the Attorney-General claiming declarations to the effect that, by signing the Treaty of Rome, Her Majesty's Government would irreversibly surrender in part the sovereignty of the Crown in Parliament and in so doing would be acting in breach of the law. Eveleigh J. upheld the order of the master striking out the statements of claim as disclosing no reasonable causes of action. At p.1039 Lord Denning M.R. said :
"No treaty has been signed. Even if a treaty is signed, it is elementary that these courts take no notice of treaties as such. We take no notice of treaties until they are embodied in laws enacted by Parliament, and then only to the extent that Parliament tells us. That was settled in a case about a treaty between the Queen of England and the Emperor of China. It is Rustomjee v. The Queen (1876)2 Q.B.D. 69. Lord Coleridge C.J. said, at p.74 :
'She' - that is the Queen - 'acted throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the control of municipal law, and her acts are not to be examined in her own courts.' "
5. In Winfat Ltd. v. A.G. [1985] 2 WLR 786 it was claimed that, by virtue of the 1898 convention, New Territories land was held on customary Chinese tenure free of building restrictions and that its compulsory acquisition by the Govenment was void because the Crown Lands Resumption Ordinance was ultra vires.
6. In his judgment, dismissing the developers' appeal from the Hong Kong Court of Appeal, Lord Diplock said at p.790 :
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"The elementary fallacy of British constitutional law which vitiates the land developers' claim is the contention that this vaguely expressed understanding, stated in the Peking Convention that there shall not be expropriation or expulsion, is capable of giving rise to rights enforceable in the municipal courts of Hong Kong or by this Board acting in its judicial capacity. Although there are certain obiter dicta to be found in cases which suggest the propriety of the British Govenment giving effect as an act of state to promises of continued recognition of existing private titles of inhabitants of territory obtained by cession, there is clear long-standing authority by decision of this Board that no municipal court has authority to enforce such an obligation. This was laid down by Lord Halsbury L.C. in Cook v. Sprigg [1899] A.C. 572, 578-579, and by Lord Dunedin in Vajesingji Joravarsingji v. Secertary of State for India (1924) L.R. 51 Ind.App. 357, 360-361.
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What the High Court and Court of Appeal of Hong Kong are bound to enforce in the New Territories is the municipal law of Hong Kong made in the manner authorised by the constitution as a British colony that has been granted to Hong Kong by the British Crown a sovereign of those territories for the duration of the cession. So far as is relevant for present purposes the Constitution applicable in the New Territories is to be found in the New Territories Order in Council 1898, the Royal Instructions to the Governor and the Colonial Laws Validity Act 1865 (28 & 29 Vict. c. 63)." |
7. Finally in In re Wong Hon [1959] HKLR 601 a Chinese national had been committed for trial on a charge of murder within the area known as the City or Walled City of Kowloon. His solicitor applied for a writ of habeas corpus on the ground that the Convention between Great Britain and China dated 9th June, 1898 reserved jurisdiction in the Walled City of Kowloon to officials of China, and that since the accused person was not a British subject the British Courts in Hong Kong could not exercise jurisdiction over him in respect of an offence committed in the Walled City.
8. Sir Michael Hogan C.J., giving the judgment of the Full Court, said at p.613 :
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"On the constitutional aspects of the case the authorities are, in our view, conclusive that in the sphere of municipal law it is not possible to establish, in the face of unqualified assertion of jurisdiction by the Crown that such jurisdiction does not exist or that it is subject to some limitation arising from the mode of acquisition of the territory in question. Whence else than from the Crown, with or without the aid of Parliament, is jurisdiction outside the United Kingdom to be derived; and how else except by the Crown is such jurisdiction to be defined or circumscribed. In these matters the Crown speaks with one voice, and alone delimits the sphere in which, and the extent to which, its various organs of government, legislative, executive and judicial, shall properly function.
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In the face therefore of the explicit assertion of unqualified jurisdiction by the Crown, with respect to the area of the City of Kowloon, contained in the Order in Council of 1899, it cannot be successfully contended that the laws of the Colony do not prevail and the Courts of the Colony are without jurisdiction therein." |
9. The appeal is allowed and the case remitted to the Adjudicator with a direction to continue the hearing.
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(E. de B. Bewley) |
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Judge of the High Court |
Representation:
Mr. K.L. Yuen, Senior Crown Solicitor, amicus curiae.
Fung Yuen-mui in person.
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