Tang Ping Hoi v. Attorney General

HCMP002060/1985

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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Coram: Hon. Nazareth, J.

Date of Hearing: 9 October 1985

Date of Delivery of Judgment: 9 October 1985

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REASONS FOR JUDGMENT

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1. On 9th October 1985 having heard the submissions made by Counsel for the Plaintiff and the Defendant, I struck out the originating summons filed in this matter and ordered the Plaintiff to pay costs. I indicated that I would hand down written reasons at a later date, and do so now.

2. By his originating summons the Plaintiff sought:-

The Defendant, the Attorney General, applied for an order that the originating summons be struck out pursuant to Order 18 rule 19 of the Rules of the Supreme Court, and pursuant to the inherent jurisdiction of this Court on the following grounds:

3. The material facts are that the Plaintiff was the lessee under a Crown Lease of Shaukiwan Inland Lot No. 415 and Extension (the Lease). The Lease was not subject to a right of renewal and expired on 4th December 1983. The Plaintiff applied for a renewal in February 1983 and some correspondences ensued between his solicitor and the Lands Department.

4. On 26th September 1984 representatives of the Governments of the United Kingdom and of the People's Republic of China initialled and published a Draft Agreement, how commonly known as the joint Declaration. It is not disputed that instruments of rectification were exchanged on 27th May 1985. By its terms the Joint Declaration entered into force upon the date of such exchange.

5. Annex III to the Joint Declaration, entitled "Land Leases" provides in its second and third paragraph as follows:

6. On 1st April 19855 which date is of no significance other than that it was subsequent to the publication of the Joint Declaration though prior to its entry into forces the Lands Department enquired from the Plaintiff's solicitor whether a formal agreement with the Government for a new lease of 150 years from 5th December 1908 at a premium of 2.2 million dollars would be acceptable. The Plaintiff's solicitors replied on 21st June 1985 that such a lease would expire in the year 2058, i.e. beyond 2047 which under the Joint Declaration was the limit to which leases could be granted; and further that under the Joint Declaration the Plaintiff should only have to pay a premium in respect of the period 30th December 1983 to 26th September 1984, and thereafter an annual rent equivalent to 3% of the rateable value. They pointed out that the leases of other lots in a similar situation had been extended without payment of additional premium.

7. The Lands Department on 27th July 1985 responded saying that the offer was made before the Joint Declaration entered into force on 27th May, 1985 and that accordingly the premium was payable for renewal of the lease. And so the plaintiff took out his originating summons on 6th September.

8. In support of the Defendant's application to strike out, Mr Burdett, Senior Crown Counsel submitted that it is clear from the title to and the text of the Joint Declaration that it is an international treaty. I think he is right. Mr Wesley Wong for the Plaintiff, in my view quite rightly, did not dispute this.

9. Mr Burdett went on to submit that notwithstanding a wealth authority that domestic courts will not construe international treaties, it was not necessary for him to cite more than the following four authorities. First Rustomjee v. The Queen (1876) 2 QBD 69 which coincidentally was also a case relating to a Sine-British Treaty. It was the Treaty of August 1842 between Her Majesty and the Emperor of China whereby the Emperor undertook to pay Her Majesty the sum of 3 million dollars in settlement of the debts owed by Chinese merchants to British subjects. The suppliant claimed that a firm of Chinese merchants owed him a considerable sum of money in 1838 and that the money under the Treaty was in part "for the purpose of paying his claim". In that context and its implication of agency and trusteeship, the Court of Appeal examined the relevant text of the Treaty and rejected the claim. On the more general issue, the Court held that p. 74 that the Queen -

"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. It is a treaty between herself as sovereign, and the Emperor of China as sovereign, and though he might complain of the infraction, if infraction there were, of its provisions, her subjects cannot. We do not say that under no circumstances can the Crown be a trustee; we do not even say that under no circumstances can the Crown be an agent; but it seems clear to us that in all that relates to the making and performance of a treaty with another sovereign the Crown is not, and cannot be, either a trustee or an agent for any subject whatever. We do not, indeed, doubt that, on the payment of the money by the Emperor of China, there was a duty on the part of the English Sovereign to administer the money so received according to the stipulations of the treaty. But it was a duty to do justice to her subjects according to the advice of her responsible ministers; not the duty of an agent to a principal, or of a trustee to a cestui que trust. If there has been a failure to perform that duty, which we only suggest for the sake of argument, it is one which Parliament can and will corrects: not one with which the Courts of Law can deal. It is indeed in the highest degree unlikely that there has been, or ever will be, such a failure."

10. Second in Vajesingji Joravarsingji v. Secretary of State for India (1924) L.R. 51 Ind. App. 357, P.C.,  in which the Scindia of Gwalior ceded to the British Government certain territory by treaty which provided for some recognition of existing rights, the appellants claimed ownership of certain lands by virtue of the treaty. Lord Dunedin in delivering the judgment of the judicial committee, said at p. 360:

"even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to these inhabitants to enforce these stipulations in the municipal Courts. The right to enforce remains only with the high contracting parties. This is made quite clear by Lord Atkinson when, citing the Pongoland case of Cools v. Sprigg (4), he says: "It was held that the annexation of territory made an act of state and that any obligation assured under the treaty with the ceding state either to the sovereign or the individuals is not one which municipal Courts are authorized to enforce.'

(4)      L.R. 42 I.A. 229, 268."

11. In Cook v. Sprigg (1899) AC 572, the Board held that the appellants as grantees of concessions made by the paramount chief of Pondoland could not after annexation of Pondoland enforce against the Crown the privileges and rights conferred; and that annexation is an act of state and any obligation assumed under a treaty to that effect, either to the ceding sovereign or to individuals, is not one which municipal courts are authorised to enforce. Lord Halsbury, L.C. at pages 578 and 579 said :

"It is a well-established principle of law that the transactions of independent States between each other are governed by other laws than those which municipal courts administer ...... if there is either an express or a well-understood bargain between the ceding potentate and the Government to which the cession is made that private property shall be respected, that is only a bargain which can be enforced by sovereign against sovereign in the ordinary course of diplomatic pressure.

In this case it certainly cannot be said that there was any bargain by the British Government that Sigoau's supposed concessions should be recognised. Indeed, the only intelligible sense in which the allegations in the declaration can be understood is that the breach of duty complained of consists in the refusal of the Cape Government to recognise the plaintiffs' concessions. To quote the language of this Board, used by Lord Kingsdown in the case of Secretary of State for India in Council v. Kamachee Boye Sahaba (1), and cited in Doss v. Secretary of State for India in Council (2) :

(1)      13 Moo. P.C. 22, 86.

(2)      (1875) L.R. 19 Eq. 534."

12. Third, in Blackburn v. Attorney General (1971) 2 ALL ER 1380, in which the appellant sought to challenge the proposal of Her Majesty's Government to join the Common Market, Lord Denning M.R. said at p. 1382:

"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. Reginam."

13. Fourth and finally, in the recent case of Winfat v. Attorney General of Hong Kong (1985) 2 WLR 786, the appellants sought rely upon a paragraph in the 1898 convention for the Extention of Hong Kong to establish a claim to a "fair price" for land in the Now Territories. In rejecting their appeal to the Privy Council, Lord Diplock said at pages 790 and 791:

"The elementary fallacy of British constitutional law which vitiates the land developers' claim is the contention that this vaguely expressed understanding, stated in the Poking 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 Government 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. 5729, 578-579, and by Lord Dunedin in Vajesingji Joravarsingji v. Secretary of State for India 1924 L.R. 51 Ind. App. 357, 360-361."

14. From the foregoing it is plain that domestic courts will not enforce obligations and rights under international treaties, unless they are embodied in the domestic law. Mr Wong did not attempt to dispute this.

15. What he did contend was that the Joint Declaration has effect as law in Hong Kong. That he says is apparent from the letter of the Lands Department dated 2nd July, 1985 to which I have already adverted. Mr Wong relies upon the following passage from that letter which he says carries a necessary implication that the Joint Declaration has effect as law:

"I regret that I cannot accept your point that the Sino-British Joint Declaration was in force when the offer for renewing the expired lease was made to your client. As far as I understand it, ratification of the said Declaration was made on 27th May 1985, from which therefore the Declaration came into force."

16. I must confess that I do not at all see any such implication. That the Lands Department sought to refute the Defendant's solicitor's claim upon the simple ground that the Joint Declaration came into force upon a date later than the solicitor suggested, does not in my view carry the implication that upon the Joint Declaration coming into force, it must have effect as law. It is therefore not necessary for me to decide whether any admission that the Joint Declaration has effect as municipal law would produce that effect. Furthermore Mr Wong did not address me on this point. Nevertheless I note that in Vajesingji's case, to which I have already alluded, at page 361 Lord Dunedin said of certain declarations made by the Government :

"The other point was that, in virtue of certain general declarations, the appellants became entitled to enforce the treaty. The general declarations will be subsequently examined. If they give a right of themselves well and good, but they can never have the effect of altering the law as above stated; that is to say, of making the appellants, so to speak, a party to the treaty with a right to enforce the conditions of the same in a municipal Court."

Those declarations, unlike the letter is the present case, did suggest (albeit in very general terms) that existing rights would be respected. Even without Lord Dunedin's helpful words, it is difficult to see how a representation by the Lands Department that the joint Declaration had the force of law (assuming that such a representation had been made) could bestow that effect upon the Joint Declaration. I find no merit whatever in this limb of Mr Wong's submission.

17. But Mr Wong also sought to rely upon an United Kingdom Act which he claimed had been enacted to ratify the Joint Declaration and had given its provisions the force of law. He was unable to identify the Act. However Mr Burdett produced the Hong Kong Act 1985 (1985 C. 15) which Mr Wong accepted was the Act he had in mind. It is plain from its provisions that they do not give the Joint Declaration the force of law. Mr Wong also sought to pray in aid The Application of English Law Ordinance (Cap. 88) in particular section 4(1)(b). It is equally plain on looking at the provisions of that Ordinance that they do not avail him in any way.

18. For the foregoing reasons I had no hesitation in granting the Defendant's application and striking out the Plaintiff's originating summons.

19. I should add that Mr Burdett stressed that in applying to strike out the originating summons there was no desire to evade any obligations under the Joint Declaration by sheltering behind a legal or technical defence; that on the contrary there was every intention to abide by the Joint Declaration fully. He submitted forcefully that the lease renewal provisions of Annex III, upon which the Plaintiff sought to rely, must refer to leases in existence at or after the coming into force of the Joint Declaration. Under paragraph 8 of the Declaration, this is the date of exchange of instruments of ratification, which, Mr Burdett invited me to take judicial notice, was 27th May, 1985. He argued that the alternative of an entitlement to renew leases long expired would not only be absurd but would produce chaos; that on expiration of the Plaintiff's lease on 4th December 1983, it ceased to exist and that this was not only before the Joint Declaration entered into force but even before it was initialled and published as a draft.

20. Mr Wong seemed no less anxious that I should in any event venture some opinion upon those matters and submitted that under paragraph 2 of the Annex, the Hong Kong Government could only grant or extend a lease for a term that expired net later then 30th June, 2047, and only upon annual rent of 3% of the rateable value. He argued that when the Lands Department letter of 1st April 1985 was issued it was certain that the Joint Declaration would be ratified and enter into force. Upon that basis he submitted that no premium at all or alternatively that only a premium in respect of the period between the expiration of the Plaintiff's lease and the entry into force of the joint Declaration, should be payable.

21. I need not elaborate further upon the submissions. No evidence was of course led so that there is no question of making findings of fact that might prove of assistance in case I am wrong on the general issue. Nor do I see any other reason to go beyond giving my reasons for striking out the originating summons. I think that would clearly be inappropriate in the circumstances of this case and I accordingly decline to do so.

Representation:

Mr Wesley Wong instructed by M/s C.P. Tsang & Co. for Plaintiff

Mr John Burden, Crown Counsel, for Defendant