Home Restaurant Ltd v Attorney-General

JurisdictionHong Kong
Date09 December 1986
CourtHigh Court (Hong Kong)
Hong Kong, High Court.

(Mayo J)

Home Restaurant ltd
and
Attorney-General

Treaties Implementation Effect in municipal courts China-United Kingdom Joint Declaration on the Future of Hong Kong, 1984 Whether provisions concerning grants of land justiciable in municipal courts Government announcing implementation of the Joint Declaration Whether giving rise to a justiciable legitimate expectation

Relationship of international law and municipal law Treaties China-United Kingdom Joint Declaration on the Future of Hong Kong, 1984, and accompanying Government announcements Whether in the realm of treaties Whether Joint Declaration incorporated into municipal law Whether justiciable in municipal courts Joint Declaration providing for Crown leases of lands to be extended without payment of premium Whether applicant entitled to have his land lease renewed under the terms of the Joint Declaration Determination of Government policy involving construction of the terms of the Joint Declaration Whether courts permitted to construe the terms of the Joint Declaration The law of Hong Kong

Summary: The facts:The applicant entered into discussions with the Hong Kong Government regarding the renewal of a Crown lease of property. The Government offered to grant him a new lease, to the year 2047, on terms which required the payment of a substantial premium as well as an annual rent. The applicant contended that he was entitled to a renewal of the lease without the payment of a premium. He based his contention on paragraph 2 of Annex III of the China-United Kingdom Joint Declaration on the Future of Hong Kong, 1984, which came into effect on 27 May 1985, and which provided for the extension of Crown leases expiring before 30 June 1997 on terms requiring only the payment of a specified annual rent and without the payment of additional premium. The applicant was granted leave to apply for judicial review. The Attorney-General sought an order setting aside the grant of leave to apply for judicial review, and striking out the application on the ground, inter alia, that the Joint Declaration was a treaty and thus not justiciable in municipal courts unless incorporated into municipal law and that it could not give rise to a justiciable legitimate expectation.

Held:Leave to apply for judicial review was set aside and the application for judicial review was struck out.

(1) The Joint Declaration and its annexes, and the accompanying Government announcements, were within the realm of treaties and were not justiciable in municipal courts unless incorporated into municipal law. It was not possible, therefore, to undertake any construction of the Joint Declaration or its Annexes.

(2) The Government's announced intention that the Joint Declaration would be implemented did not give rise to a justiciable legitimate expectation that the applicant's Crown lease would be renewed in accordance with the provisions of the Joint Declaration. It was not possible to determine the Government's policy regarding its intention to implement the Joint Declaration without examining the Joint Declaration and its Annexes which being a treaty were not justiciable.

The following is the text of the relevant parts of the judgment of the Court:

The respondent in these proceedings, the Attorney General, is applying for an order to set aside the leave which was granted by Hooper, J. on 6th October 1986 for the applicant to apply for judicial review. The respondent is also applying for the applicant's notice of motion to be struck out.

The grounds filed by the respondent in support of this application are (1) that the court has no jurisdiction to grant the relief sought; (2) that the notice of motion discloses no reasonable cause of action; (3) that the notice of application and the notice of motion is an abuse of the process of the court; and (4) that the same is frivolous and vexatious.

The applicant held a Crown lease of property at 20 Hanoi Road, Kowloon. The Crown lease expired in December 1978. The applicant remained in possession. At the time of the expiration of the Crown lease, the applicant entered into discussions with the Government for the renewal of the Crown lease. No agreement was forthcoming.

The Crown made alternative proposals for the comprehensive re-development of the land together with adjoining land the Crown leases of which expired at the same time. A large area of land was encompassed in the proposed re-development scheme and the land in question was bounded by four streets in the Tsim Sha Tsui area. As a result of circumstances which it is not necessary for me to deal with, the re-development scheme was not proceeded with.

In March 1985 the Director of Lands intimated that he might be prepared to offer re-grants of the various Crown leases and that the term of years granted thereunder would expire in the year 2047. No offers were made by the Director of Lands until December 1985. It will be appreciated that during this period the applicant held the property as a tenant at will holding over.

During this period the British Government and the Chinese Government were entering into negotiations and discussions relating to the future of Hong Kong. The Joint Declaration of these Governments' intentions was deemed to come into effect on the 27th May 1985. Annex III to the Declaration contained fairly detailed provisions concerning the manner in which grants of land would be dealt with in the future. Also at...

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