Winfat Enterprises (HK) Co Ltd v. Attorney General
Read the full judgment text of HCMP 982/1982 on BabelCite. This High Court CFI judgment was delivered on 29 April 1983.
1. The plaintiff in these proceedings is a limited company which, between 1974 and 1976, acquired the Block Crown lease of a number of parcels of land in the New Territories terminating 3 days prior to the expiry in 1997 of the lease by China to Great Britain of such Territories. The meaning of the expression "Block Crown lease" is explained in the Reasons for Judgment of the Hong Kong Court of Appeal in Attorney General v. Melhado Investment Ltd . given on 13th March 1983. It was hoped, if not
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HCMP000982/1982
Convention of Peking 1898 - Constitutional law - Proclamations - New Territories Ordinance, Cap.97 - Crown Lands Resumption Ordinance, Cap.124 - Supreme Court - whether or in what circumstances jurisdiction to construe a treaty between sovereign states and to hold municipal legislation ultra vires as involving breaches of its provisions. The plaintiffs issued an Originating Summons whereby they sought declarations as to the pre-Convention rights of their predecessors in-title and to the effect that the resumption by the Crown of part of their land in the New Territories was ultra vires insofar as the legislature had purported to enact ordinances wholly or partially repugnant to the terms of a treaty incorporated into municipal law by royal proclamation or in excess of the powers conferred by the Order in Council dated the 20th October 1898, by the Letters Patent 1888 and by the Royal Instructions. Alternatively the plaintiffs sought declarations to the effect that the Crown had acted ultra vices in purporting, by the terms of a Block Crown lease, to restrict the plaintiffs' user of their land. Held:
H.C.M.P. NO. 982 OF 1982 LIST OF CASES CITED BY COUNSEL
H.C.M.P. NO 982 OF 1982 LIST OF TEXTS AND LEARNED WORKS CITED BY COUNSEL
Having regard to the likelihood of genuine public interest in the outcome of these proceedings, which were heard in Chambers, and with the full agreement of counsel, I am not only giving judgment in open Court but, in contrast with "the handing down" procedure sanctioned by o.42 r.5A, doing so in the traditional way. However, copies of the judgment will be made available to those interested in due course and I shall refer to rather than recite the contents of certain documents wholly or partially reproduced.
IN THE SUPREME COURT OF HONG KONG HIGH COURT MISCELLANLOUS PROCEEDINGS BETWEEN
Coram: Hon. Kempster, J. Date: 29 April 1983 ______________ J U D G M E N T ______________ 1. The plaintiff in these proceedings is a limited company which, between 1974 and 1976, acquired the Block Crown lease of a number of parcels of land in the New Territories terminating 3 days prior to the expiry in 1997 of the lease by China to Great Britain of such Territories. The meaning of the expression "Block Crown lease" is explained in the Reasons for Judgment of the Hong Kong Court of Appeal in Attorney General v. Melhado Investment Ltd. given on 13th March 1983. It was hoped, if not expected, that the prohibition on use for building purposes contained in the Block Crown lease might be waived on payment of a suitable premium. On the other hand the plaintiff knew, I would assume, of the compensation and other provisions of the Crown Lands Resumption Ordinance, Cap, 124 as amended. 2. On 30th November 1977 the plaintiff submitted to the appropriate District Officer detailed proposals for the potentially profitable development of the land for high-class housing which would appeal to persons employed in executive and managerial roles in Tuen Mun and Yuen Long New Towns. The project did not commend itself to Government and the application was refused; on the basis, the plaintiff claims, that the area was inadequately provided with basic services. The plaintiff sought re-assessment of its application. By letter dated the 18th December 1978 the Estate Surveyor for the District Officer again intimated a refusal. He stated that necessary support from other Government departments had not been forthcoming. Undeterred the plaintiff tried once more and once more, this time by letter to the plaintiff's surveyor dated the 21st July 1980, the Estate Surveyor refused. "There is no present planning proposal to permit urban development in the general area in which your client's land is situated" he wrote. "The appropriate use is still considered to be agricultural". He sent a further letter to like effect on the 28th January 1981. 3. Making the best of a bad job the plaintiff sub-let the greater part of its land for a period of 3 years with an option for renewal for a further 2 years to a firm called New Yick Fung Enterprises Co. which wanted space for the parking of vehicles. As was there thought necessary a short-term waiver was sought from and granted by the District Officer in consideration of the payment of "fees". 4. On the 7th October 1981 the following Notice No. 3080 appeared in the Government Gazette -
The lots described embraced the greater part of the plaintiff's land and may properly be referred to as "the resumed land" the balance being the severed land". A letter to the plaintiff from the Secretary for the New Territories to similar effect and dated the 26th November 1981 followed. Paragraphs 2 and 3 of that letter, said -
By reason of the sub-lease to which I have referred the plaintiff could not comply with the conditions imposed for cash compensation and, as the Crown had resumed pursuant to ordinance and not to the terms of the lease, was left with the recourse described in paragraph 5 which read -
This meant that the plaintiff could not base a claim for compensation on the reason for which the land had been acquired namely that it had potential development value for housing purposes. 5. The attitude of the plaintiff is best expressed in paragraph 13 and in the first sentence of paragraph 14 of the affirmation made by the Chairman of its Board of Directors, Mr. Tan Eng Aik, on the 28th May 1982 -
The Crown has taken the view that these matters are irrelevant to the issues which the Court has to determine and has filed no explanatory or contradictory evidence. This view is correct in law for which. reason, together with the absence of Crown evidence, I express no opinion one way or the other. 6. When submitting claims for compensation on the 5th March 1982 the plaintiff's solicitors wrote -
7. On the 1st June 1982 the plaintiff issued an Originating Summons against the Crown, by the Attorney General. The first six paragraphs, in their amended form, claimed -
The plaintiff thereby raised issues of profound importance to Government and to landholders in the New Territories alike. Mr. Widdicombe, who appeared for the plaintiff, was at pains to demonstrate, as will appear, that these issues, which affect the validity of colonial laws in the Courts of Hong Kong rather than their recognition elsewhere, have been canvassed at other times and in other places. No plea based on laches, abandonment or acquiescence has been advanced on behalf of the Crown. 8. I necessarily turn to the relevant history of the New Territories starting with the system of land tenure prevailing in the summer of 1898. In this regard I have the advantage of an affidavit, the contents of which are not contested, sworn by Mr. Antony Dicks, a barrister practising in this territory who is conversant with Chinese land law. Paragraphs 7 to 11 of his affidavit read as follows -
In the Gazette for 25th November 1899 the Objects and Reasons given by the Acting Attorney General for the introduction of "A Bill entitled The New Territories Land Court Ordinance" were set out -
Having considered the terms of the Block Crown lease I am satisfied on the balance of probabilities that the land comprised therein was held by the plaintiff's predecessors in, title on the basis of "common tenure" and that the plaintiff is entitled to the first of the declarations sought provided that the words "subject to payment of land taxes." are added. 9. On the 9th June 1898 a Convention, subsequently ratified, was concluded between Great Britain and China in Peking. The material parts of that Convention recited -
The Convention came into force on the lst July following. It is on the last sentence quoted together with the terms of two proclamations made by the Governor in Chinese that Mr. Widdicombe founds his submissions in support of the second to sixth declarations sought. 10. On the 20th October 1898, by Order in Council made at Balmoral, a prerogative act which it is not suggested that this Court can question, Her Majesty Queen Victoria made provision for the Government of the New Territories during the currency of the lease as follows -
This document formally vested sovereignty in and dominion over the New Territories in Her Majesty and defined the limits of the authority of the Hong Kong legislature in relation thereto; prima facie giving the Governor in Council power to legislate in relation to and to expropriate land. Had the Foreign Jurisdiction Act 1890 been invoked different considerations would have arisen. The words in paragraph (ii) of the Order in Council followed the terms of Article IX of the Letters which had been made patent by Her Majesty on the 19th January 1888 making revised pro-vision for a Governor for the Colony of Hong Kong and at the same time defining the extent of his authority. Articles III, VII, VIII, IX, X, XI and XII of such Letters Patent read -
Further guidance had been given to the Governor both on the same day and on the 7th July 1896 by Instructions from Her Majesty. Instruction XXII reads -
It is the plaintiff's contention that, in relation to the ordinances impugned, successive Governors gave their assent in breach of such instructions and of Article XII of the Letters Patent. The plaintiff concedes that all but one of such ordinances were not subsequently disallowed. That one is the Land Court (New Territories) Ordinance No. 8 of 1900 but, having regard to the terms of a draft letter from the Secretary of State for the Colonies to the Governor dated 25th May of that year, I find, again on the balance of probabilities, that such ordinance was not subsequently disallowed either. 11. I now turn back to what could colloquially be called "the situation on the ground". On the 27th March 1899 the Magistrate of the San On District of the Kwong Tung Province of China, part of which had by then been incorporated in the Colony of Hong Kong issued a notice for general information declaring to the inhabitants of the "New Territories" that within the leased area as delimited all fields, land, houses, graves, local customs and usages would remain unchanged. On the 4th April the Viceroy of the two Kwong Tung Provinces and the Governor of the Kwong Tung Province issued a notice for general information which (in translation) read -
The translations of both these declarations were laid before the Legislative Council of the Colony on the 4th October 1899. 12. Meanwhile on 8th April 1899 the Governor, expressly pursuant to the terms of the Order in Council of 20th October 1898, made a proclamation in English under the public seal of the Colony fixing the 17th April following as the day when all its laws and ordinances should take effect in the New Territories. From time to time he made other proclamations in English and under seal in relation to military stores and contagious diseases. "Like the proclamation made by Sir Edward Youde on 30th March 1983 in relation to the Coinage" they were expressed to be made, directly or indirectly, pursuant to the terms of ordinances Orders-in-Council and the legislative validity of such proclamations is not challenged. 13. At the time of the original occupation of the Island of Hong Kong on behalf of the Crown Captain Charles Elliot, R.N., who, pursuant to section V of "An Act to regulate the Trade to China and India" [3 & 4 William IV c 93] had been appointed Chief Superintendant of the Trade of Her Majesty's subjects within the dominions of the Emperor of China and, under the Great Seal, Her Majesty's Plenipotentiary in such dominions, had issued two proclamations. The first, made jointly with the Commander in Chief British Forces on 1st February 1841, both informed the native inhabitants that they were now the Queen's subjects and, torture excepted, would continue to be governed according to their own laws and exempted Chinese ships and merchants from liability to duty. The second, made on the following day from his ship then anchored in the habour, declared that he, Captain Elliot, was responsible for Government. As regards the legislative validity of these two documents which came into existence prior to the formal cession of the Island of Hong Kong to the Crown by the Treaty of Nanking on 29th August 1842. I adopt the opinion of Mills-Owens J. in Re Tse Lai-Chin deceased (1) at page 194 -
The Island was not "erected" into a separate Colony until the Letters o 5th April 1843 were made Patent but certainly since the Kowloon Order in Council dated the 4th February 1861 the Crown has been deemed ultimate owner of all land on the island and in the Kowloon peninsula and Crown leases have been granted in relation to such land without reference to any particular date in the future. 14. On the 9th April 1899 the Governor made a proclamation in Chinese, the material parts of which, in translation, read -
Land speculation had already begun in the New Territories and, with varying degrees of intensity, has continued ever since. 15. On the 12th July 1899 the Governor made a further proclamation in Chinese, the material parts of which, in translation, read
And then are set out the provisions for Crown rent which the Governor had made in Council on the same day pursuant to section 3 of Ordinance No. 12 of 1899 being "An Ordinance to provide for the better regulation of the New Territories". That Ordinance had been assented-to by the Governor and taken effect on the 18th April. 16. I return to the proclamation -
While the original Chinese versions of the two proclamations are not available they are not expressed, at least in translation, to be made under seal or pursuant to any Order in Council or Ordinance. Their legislative validity is challenged. In contrast with the publication in the Gazette on the 19th February 1900, by direction of the Governor, of the Royal Proclamation of the existence of a state of war as between the Crown and the South African Republic and the Orange Free State which had been made at Windsor on the 27th December 1899, these proclamations were the Governor's own and an occupier of land in the New Territories at the time might well have been entitled to call upon the Colonial Government to redeem the promises which they embodied. Attorney General v. Ng Yuen Shiu. (2) 17. On the 7th October 1899 a bill was introduced into the Legislature "to amend the Crown Lands Resumption Ordinance 1889." That ordinance, introduced on account of the insanitary construction of dwelling houses in the City of Victoria, had empowered the Governor in Council, in the event of a breakdown of negotiations with the leaseholder, to resume lands leased from the Crown on payment both of the value of the land and buildings and of compensation for the severance of such land from adjacent land in the same occupation; the amounts to be fixed by a Board of Arbitrators. It was now proposed that the Governor in Council should be empowered to acquire land for public purposes wheresoever situated in the enlarged Colony since there was doubt as to whether or not land in the New Territories was vested in or leased from the Crown. The bill became law on the 24th of that month as Ordinance No. 30 of 1899. By section 15 of the Land Court (New Territories) Ordinance, No. 8 of 1900, to which I have already alluded and which took effect on the 28th March 1900 despite a protest by members of the Legislative Council that the bill violated the provisons of the Convention, any doubt should have been laid to rest. The section declared all land in the New Territories "to be the property of the Crown during the term specified in the Convention of the 9th day of June 1898". The ordinance as a whole provided for a Land Court to hear claims to title and, where a claim was allowed, for the Governor to grant an appropriate title on behalf of the Crown. On the 16th July 1900, following suggestions from the Secretary of State for the Colonies, this ordinance was repealed and replaced by Ordinance No. 18 of 1900 which contained a number of changes immaterial for present purposes. However, the New Territories Titles Ordinance No.47 of 1902 entitled customary land-holders to extracts from the Titles Register and to surrender their rights in exchange for Crown leases. Uncertainty as to the rights of the Crown in relation to land in the New Territories. Under Objects and Reasons for "A Bill entitled An Ordinance to repeal the New Territories Titles Ordinance 1902" published in the Gazette for the 20th November 1903 the Attorney General wrote -
The New Territories Titles Ordinance 1902 was repealed on the 9th December 1903. To occupier's whose titles had scrupulously been examined and approved by the Land Court, applying Chinese law and custom, the grant of Block Crown leases for a term of 75 years from the 1st July 1898 renewable for a further 24 years less 3 days became standard. Section 14 of the New Territories Regulation Ordinance No. 34 of 1910 read -
18. The Crown Lands Resumption and Resumption (Amendment) Ordinances of 1889 and 1899 were repealed and replaced by the Crown Lands Resumption Ordinance 1900 which re-enacted the earlier provisions for compensation. But section 2(c) of the Crown Lands Resumption Ordinance 1921 provided that no compensation should be given in respect of any use of the land which was not in accordance with the terms of the Crown lease under which the land was held. Section 2(c) of the Crown Lands Resumption Amendment Ordinance 1922 added a further restriction on the amount of compensation which might be awarded on resumption. It read -
19. On the 29th April 1925 a petition was sent to the Secretary of State for the Colonies, Mr. L.S. Amery, by landholders in the New Territories making virtually the same complaints as those presently advanced by the plaintiff. In his draft letter to the Governor acknowledging receipt of the petition the Secretary of State wrote -
20. His opinion had no apparent effect on the land legislation of the Colony. 21. I turn to legislation current at the time of issue of the Originating Summons. The relevant sections of the New Territories Ordinance, Cap. 97 read-
22. The relevant sections of the Crown Lands Resumption Ordinance, Cap. 124, read -
23. Upon the effect of this fasciculus of ordinances, orders in Council, letters patent, royal instructions, proclamations, and practice the argument turns. 24. It is common ground between the parties that international obligations such as those imposed by the 1898 Convention have no effect in municipal law as such albeit "sacred and inviolable according to that true intent and meaning" per Lord Mansfield in Campbell v. Hall (3) at page 208. It is not competent for this Court to enquire into an allegation of the breach of or to construe the terms of a treaty concluded between Sovereign States, Oyekan v. Adele (4) at page 788, where the opinion of the Judicial Committee was expressed by Lord Denning as follows –
The plaintiff, accepting the burden of showing what land rights have been recognised by the Crown, relies upon this assumption and contends that it is properly made as regards the inhabitants of the New Territories having regard to the terms of the two "Chinese" proclamations made by the Governor in 1899; of the Order in Council dated the 20th October 1898 and of the Letters Patent and the Royal Instructions. It is submitted that the proclamations had the force of law and, therefore, imported into the municipal law of the Colony overriding provisions that there should be no expropriation of the inhabitants of the New Territories and that any land required for public purposes should be bought at a fair, meaning full market, price. Alternatively it is submitted that the words "it shall be competent for the Governor of Hong Kong, by and with the advice and consent of the Legislative Council of the said Colony, to make laws for the peace, order and good Government of the said territories as part of the Colony" found in Article II of the Order in Council of June 9th 1898 did not give the Colonial Legislature power to pass laws in breach of the Convention or of public international law and that legislation having such effect is ultra vires. Thus the Court is invited indirectly to inquire into allegations of the breach of a treaty. 25. Ordinances purporting to vest the land of the New Territories in the Crown and to provide for payment of compensation at less than open market value as well as the grant of a leasehold interest less by 3 days than that claimed by the Crown and prohibiting building development into the bargain will, it is further submitted, constitute expropriation. 26. In the further alternative it is argued that successive Governors had no power to assent to and thereby to validate bills when such assents involved breaches of treaty by the Crown and therefore unlawful grants or dispositions within the meaning of Article XII of the 1888 Letters Patent as well as breaches by the Governor of Instruction XXII (7) of the Royal Instructions. At first blush the Court would seem precluded from entertaining the last of these submissions the legislative process being complete, by the terms of the 1898 Order in Council and of section 4 of the Colonial Laws Validity Act 1865 which were referred to in Rediffusion (HK) Ltd. v. Attorney General (6) at page 249-
But it is said, if I understand Mr. Widdicombe correctly, that section 4 only validates an ordinance assented to in breach of an Instruction specifically referring to the antecedent bill. I cannot accept such a construction and the submission based on Article XII of the Letters Patent and Instruction XXII (7) fails. It is, however, true that section 4 will not of itself save the ordinances in question if they are otherwise ultra wires. 27. With regard to the two "Chinese" proclamations it is contended on behalf of the plaintiff that the Crown was thereby exercising a prerogative not available in the United Kingdom [Case of Proclamations (7)] where, in any event, the document was required to be made under the Great Seal and published [Keyley v. Manning (8)] to legislate by proclamation for or conquered territory. This prerogative right the Crown had not forfeited or disabled itself from exercising by the grant or solemn promise of subordinate legislative powers to a Governor and Assembly as had occurred in the North American Colonies, Malta and Granada. I think I am entitled to take judicial notice of the fact that the assemblies in those colonies were elected or, alternatively, to accept the authority of a distinguished constitutional historian to that effect. Campbell v. Hall (3) at page 212; Sammut v. Strickland (9); "British Rule and Jurisdiction beyond the Seas" by Sir Henry Jenkyns, Clarendon Press, 1902, page 7. In Sammut v. Strickland the Judicial Committee may well have used the words "representative institutions" with the definition of "Representative Legislature" in section l of the 1865 Act in mind. The Hong Kong legislature is neither elective nor fully sovereign as was explained by Lord Diplock when giving the advice of the Judicial Committee in Rediffusion (HK) Ltd. v. Attorney General (6) at pp 242 to 244. 28. The Crown contends that the nature of the American and Caribbean assemblies referred to by Lord Mansfield in his judgment in Campbell v. Hall, although well-known to him, was not the significant factor in his decision and that, by the grant of an appointed assembly, the Crown had effectively forfeited the right to legislate for the Colony of its own motion. The point of "self-limitation" did not arise in Lam Yuk Ming v. Attorney General. (10) I an therefore free to find, as I do, that in the absence of the grant of an elected assembly and therewith of significant attributes of sovereignty which, I believe, was the basis of Lord Mansfield's decision, the Crown had not fettered its ancient but apparently dormant powers to legislate for the Colony of Hong Kong by proclamation under the Great Seal; implying the advice of a known responsible minister. Jephson v. Riera. (11) In any event Article XI of the Letters Patent had expressly reserved to the Crown a concurrent right to legislate, whether by proclamation or otherwise, with the advice of the Privy Council. 29. But did the Sovereign, with or without the advice of the Privy Council or under the Great Seal or howsoever purport so to do? The Governor, not being a Viceroy and having no relevant delegated powers under the Order in Council or Letters Patent, could not legislate of his own motion and was certainly not in possession of the Great Seal. In my view he did not even profess vicariously to exercise the royal prerogative to legislate by the two "Chinese" proclamations nor, apparently, did he apply the seal of the Colony. There is no reason to presume that he did so. It is only necessary to look at the terminology of these pro-clamations to observe that, in contrast with the sealed proclamations made in English pursuant to ordinance or Order in Council their tenor, like those made by Captain Elliot or described in Ex-parte Chavasse (12) at pp 662 and 663, was rather promissory, informative and minatory than legislative. "To suppose that by such general statements in a proclamation the Government renounced their right to acknowledge what they thought right and conferred on a municipal court the right to adjudicate as upon rights which existed before cession is - to misapprehend the law -"per Lord Dunedin in Vajestingji Joravarsingji v. Secretary of State for India at page 367. 30. I have been shown no admittedly legislative act pertaining to Hong Kong expressed in the Chinese language. The "Chinese" proclamations were no exception. Her Majesty Queen Victoria did not thereloy exercise her residual on reserved powers to legislate for Hong Kong by proclamation under the Great Seal of her own motion or with the advice of the Privy Council. 31. The formula "for the peace, order and good government" of a Colony is, in theory at least, subject to the examination of the court which may hold an ordinance to be beyond the powers so entrusted to the subordinate legislature and void but "such a power has been held 'to authorise the utmost discretion of enactment for the attainment of the objects pointed to' and a court will not inquire whether any particular enactment of this character does in fact promote the peace, order or good government of the Colony." Chenard & Co. v. Arissol. (13) Less drastically the court will, in the event of ambiguity, seek so to construe an ordinance as to render its provisions consistent with the comity of nations and the established rules of public international law. Bloxam v. Favre (14) at p 107; Macleod v. Attorney General for New South Wales (15) at p 457; Salomon v. Commissioners of Customs and Excise (16) at pp 874 to 875. Further "a mere change in sovereignty is not to be presumed as meant to disturb rights of private owners and the general terms of a cession are to be construed accordingly. The introduction of the system of Crown Grants which was made subsequently must be regarded as having been brought about mainly, if not exclusively, for conveyancing purposes and not with a view to altering substantive titles already existing - the original native right was a communal right and it must be presumed to have continued to exist unless the contrary is established by the context or circumstances" per Lord Haldane in Amodu Tijani v. Secretary, Southern Nigeria (17) at pp 407 to 410. In my view the contrary is clearly established in the Colony of Hong Kong by the unambiguous terms of the ordinances already referred to. 32. It is further submitted that, by parity of reasoning, the words "for the peace, order and good government" of the Colony appearing in the Order in Council, being of uncertain extent, must so be construed as to render legislation in breach of treaty ultra vires. These words "connote, in British constitutional language, the widest law making powers appropriate to a sovereign" per Lord Radcliffe in Ibralebbe v. The Queen (18) at p 923 though, in Hong Kong, such powers are subject to the provisions for disallowance expressly reserved to the Crown. In my opinion the words in question, hallowed as they are by long and widespread usage, are clear and unambiguous and must be given effect whether or not they carry out treaty obligations. It has never been held, though it has been suggested, that the laws of a Colonial Legislature in breach of international law are void. 33. I also find that the ordinances of which the plaintiff complains were ratified by non-disallowance amounting in law to express authorisation. Directions given by a Secretary of State pursuant to Article III of the Letters Patent may render unnecessary amendment of the Royal Instructions. In Inglis v. De Barnard (19) There fell for consideration an Order in Council made on the 15th January 1829 relating to the Registry of Deeds and Instruments in the Island of St. Lucia: "It may be lawful for the Governor or officer administering the' Government of the said Island with the advice of the Council of Government thereof by ordinances to be by them for that purpose from time to time made, as occasion shall require, to make ordain and prescribe all necessary and proper rules and regulations for the manner of keeping the before mentioned registry - a11 such rules and regulations being nevertheless subject to be disallowed by His Majesty in whole or in part as to His Majesty shall seem meet." It was suggested that the ordinance enacted in purported pursuance of the Order in Council went further than the Order permitted and was in consequence inoperative and void quoad such excess. It was held, however, that the ordinance having been so passed and a copy transmitted to the Government at home without disapproval or alteration, such ordinance must be considered as duly authorized by the Order and, that the two instruments taken together comprised the law of the land. Burnn v. Denman (20) and the somewhat unattractive case of Phillips v. Eyre (21) at pp 23 and 24 are authorities to like effect as, in the present jurisdiction, persuasively at least, is Pong Wai Ting v. Attorney General of Hong Kong. (22) There is one qualification to this rule. Non-disallowance, by analogy with the royal consent to a Dominion or Commonwealth statute, cannot give validity to an enactment which is void by Imperial statute or because repugnant to a Constitution; D'Emden v. Pedder (23) at p 117; Nadan v.The King (24) p 493. 34. Seeking to turn this principal of law to advantage the plaintiff points out that translations of two "Chinese" proclamations were sent to the Secretary of State who did not demur. But the acquiescence of the Crown to documents not having prima facie legislative effect is not to be equated with its express authorisation. Cameron v. Kyte (25) at p 342. 35. The Governor in Council has and at all material times had an unfettered right to legislate in relation to and to expropriate land in the New Territories during the currency of the lease from China. 36. Since it is not necessary it is not desirable for the Court to seek to determine whether or not the matters complained of amounted to expropriation and, if so, whether or not the ordinances recited in the Originating Summons authorised breaches of 1899 Convention. An analogous task was undertaken by Carrington C. J. in Chau Kwai Chiu & Anor. v. Wong Shin (26) ("The Shell Case"), but, since the Full Court was exercising its original jurisdiction, the case does not bind me. It is in any event distinguishable as the proceedings did not involve the Crown as a party. I do not follow the decision of the Chief Justice that the Crown had no power to confer title expropriating existing rights in breach of the Convention. 37. The ordinances relating to land in the New Territories being valid the declarations sought in pass 2, 5 and 6 of the Originating Summons are refused. It necessarily follows that the declarations sought in pares 3 and 4 must also be refused. 38. The relief claimed in paragraphs. 7 to 10 inclusive of the Originating Summons is as follows -
39. As regards the Seventh declaration sought I am satisfied that the Land Court did not itself do more than "allow" claims to title and that the Governor was acting intra vires in granting consequential leasehold titles shorter in time than the Crown's interest and subject to restriction, pursuant to valid ordinances. The lease acquired by the plaintiff was wholly valid. This declaration is refused. 40. As regards the Eighth declaration sought I am satisfied that, subject to any leases granted, section 8 of the New Territories Ordinance Cap. 97, following earlier legislation, was apt to vest all land in the Territories in the Crown until and only until the expiry at midnight on the 30th June 1997 of the lease by China to the Crown. Prior to that date land may, as occurred in the case of part of the plaintiff's land validly be resumed pursuant to section 3 of the Crown Lands Resumption Ordinance, Cap.124. But whether or not the words in section 5 providing, in relation to resumed land, that "all the rights of the owner, his assigns or representatives and of any other person in or over the land or any part thereof shall absolutely cease" have effect after the 30th June 1997 is not a question upon which I have material or have heard argument warranting a ruling. I am not prepared to make any declaration in relation to land title in the New Territories on or after the 1st July 1997. 41. As regards the Ninth declaration sought the plaintiff, reserving rights elsewhere, does not suggest that this Court can grant such relief. Watford Construction Co. Ltd. v. Secretary for the New Territories (27) It is refused accordingly. 42. As regards the Tenth declaration sought I grant a modified formula, not opposed by the Crown here, as follows -
(1) (1969) H.K.L.R. 1.59 (2) Privy Council Appeal No. 16 of 1982
(3) (1774) 1 Cowp 204 (4) (1457) 2 All E.R. 785 (5) (1) (1924) L.R. 51 Ind. App. 357 (6) (1970) H.K.L.R. 231 (7) (1611) 12 Cc Rep 74 (8) (1630) Cro Car 180 (9) (1938) A. C. 678 (10) (1980) H.K.L.R. 815 (11) (1835) 111 Knapp 130 (12) (1865) 4 De G, J-and S 655 (13) 1949 A. C. 127 (14) (1883) 8 P D. 101 (15) 1891 A.C. 455 (16) (1966) 3 All E. R. 871 (17) 1921 A. C. 399 (18) 1964 A. C. 900 (19) (1841) 3 Moo P.C. 425 (20) (1848) 2 Exchequer 167 (21) (1870) L.R. 6 Q.B. 1 (22) (1925) H.K.L.R. 22 (23) (1904) 1 C.L.R. 91 (24) 1926 A.C. 482 (25) (1835) III Knapp 332 (26) 9 Commonwealth Int. Law Cases 298
(27) (1978) H.K.L.R. 410 Representation: David Widdicombe Q.C. and Anthony Neoh (Raymond Tang & Co.) for plaintiffs John Griffiths Q.C., Attorney General, R.A. Osborne and Alfred Chow (Legal Dept.) for the Crown | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||