Tang Ping-hoi v Attorney-General

JurisdictionHong Kong
CourtHigh Court (Hong Kong)
Date09 October 1985
Hong Kong, High Court.

(Nazareth J)

Tang Ping-hoi
and
Attorney-General

Treaties Implementation Effect in municipal courts China-United Kingdom Joint Declaration on the Future of Hong Kong, 1984 Whether treaty obligations of the Crown capable of enforcement at the instance of a subject in the municipal courts Joint Declaration providing for Crown leases to be extended without payment of additional premium Plaintiff applying for renewal of land lease in Hong Kong Whether entitled to rely upon the terms of the Joint Declaration Whether courts having jurisdiction to grant relief under the Joint Declaration Hong Kong Act 1985 (UK) Application of English Law Ordinance (Cap 88)

Relationship of international law and municipal law Treaties China-United Kingdom Joint Declaration on the Future of Hong Kong, 1984 Whether an international treaty Whether having force of law in Hong Kong Whether justiciable in municipal courts Joint Declaration providing for Crown leases of lands to be extended without payment of premium Whether giving rise to rights enforceable in municipal courts Whether applicant entitled to have his land lease renewed under the terms of the Joint Declaration The law of Hong Kong

Summary: The facts:The plaintiff, who had applied for renewal of a land lease, sought declarations that the Hong Kong Government was not entitled to offer a grant of leases extending beyond 30 June 2047, a date fixed by the Joint Declaration, 1984, on the future of Hong Kong; and that upon a true construction of the Joint Declaration he was entitled to an extension of his lease up to 30 June 2047 without the payment of an additional premium. The Attorney-General applied to have the plaintiff's summons struck out on the grounds that the application was not justiciable and that the Court had no jurisdiction to grant the relief sought.

Held:The application of the Attorney-General was allowed.

(1) The Joint Declaration, which entered into force on 27 May 1985, was an international treaty and, therefore was not capable of giving rise to rights enforceable in the municipal courts of Hong Kong unless embodied in municipal law. The ratification of the Joint Declaration also did not have effect in municipal law. Therefore, even the representation of the Lands Department that the Joint Declaration had the force of law did not give it that status.

(2) The Hong Kong Act 1985 (UK) enacted to ratify the Joint Declaration or the Application of English Law Ordinance (Cap 88) did not give the Joint Declaration the force of law in Hong Kong.

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

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.

By his originating summons the plaintiff sought:

  • (1) a declaration that upon the true construction of the Joint Declaration, the Hong Kong Government is not entitled to offer a grant of land leases extending beyond 30th June 2047 after 26th September 1984 or alternatively 27th May 1985;

  • (2) a declaration that upon the true construction of the Joint Declaration, the plaintiff is entitled to an extension of the Crown lease dated the 30th day of November 1916 in respect of Shaukiwan Inland Lot No. 415 and extension for a period not expiring later than the 30th June 2047 without payment of an additional premium; and

  • (3) an order that the Hong Kong Government through the Lands Department do forthwith draw up the necessary documents for the extension of the Crown lease in respect of the aforesaid Lot and extension to a date not later than the 30th June 2047 in favour of the plaintiff.

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:

  • (1) that the application is not justiciable by a municipal court; and

  • (2) the court has no jurisdiction to grant the relief sought.

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 correspondence ensued between his solicitor and the Lands Department.

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...

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