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Winfat Enterprises (Hk) Co Ltd v Attorney General

Judgment Cited authorities 31 Cited in Precedent Map Related
Vincent
Judgment Date29 April 1983
Year1983
Judgement NumberHCMP982/1982
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP000982/1982 WINFAT ENTERPRISES (HK) CO LTD v. ATTORNEY GENERAL

HCMP000982/1982

M.P. No. 982 of 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:

1. The plaintiffs were entitled to declarations only that their predecessors-in-title had held the land on the basis of "common tenure" prior to 9th June 1898 and that, nuisance apart, they might have used the land for any purpose other than building development prior to resumption.
2. That the two proclamations made by the Governor in Chinese during 1899 and relied upon by the plaintiffs had no effect in law.
3. That the ordinances impugned were unambiguous and had not contained provisions ultra vires of the legislature.
4. That the words "for the peace, order and good government of the Colony" found in Article IX of the Letters Patent involved no ambiguity and entitled the legislature to expropriate landholders in the New Territories. Chan Kwai chui Amor v. Wing shing (The Shell Case)* not followed
5. That assent to ordinances given by the Governor in breach of Royal Instructions did not invalidate such legislation having regard to the terms of section 4 of the Colonial Laws Validity Act 1865.
6. Alternatively that the ordinances impugned had retrospectively been validated by subsequent "non-disallowance" by the Crown. *9 Commonwealth Int Law Cases 298. Hong Kong Daily press 30th June 1900
7. That the Court was not entitled directly to entertain allegations of breach of treaty or of public international law and that it was therefore undesirable to rule on such allegations arising indirectly once it was apparent that the terms of the relevant treaty had not been incorporated into the municipal law of the Colony; that the legislative powers conferred by Order in Council or otherwise had not been exceeded and that the issue was academic.

H.C.M.P. NO. 982 OF 1982

LIST OF CASES CITED BY COUNSEL

1 Calvin's Case (1608) 7 Co Rep. la

2 Case of Proclamations (1610) 12 Co. Rep. 74

3 Keyley v. Manning (1630) 79 E. 758

4 Campbell v. Hall (1774) 98 E.R. 1045

5 The "Rolla" (1807) 165 E.R. 963

6 Jephson v. Riera (1835) 12 E.R. 598

7 Cameron v. Kyte (1835) 12 E.R. 678

8 Inglis v. De Barnard (1841) 3 Moo P.C. 425

9 Buron v. Denman (1848) 154 E.R. 450

10 Secretary of State in Council of India v. Kamachee Boye Sahaba (1859) 7 Moo Ind. App. 476

11 Ex parte Chavasse (1865) 46 E.R. 1072

12 Phillips v. Eyre (1870) L.R. 6 Q.B. 1

13 Rustomjee v. The Queen (1876) 2 Q.B.D. 69

14 Bloxam v. Favre (1883) 8 P.D. 101

15 Bloxam v. Favre (1884) 9 P.D. 130

16 Riel v. Reg (1885) A.C. 675

17 MacLeod v. A.G. for N.S.W. (1891) A.C. 455

18 Cook v. Sprigg (1899) A.G. 572

19 Chau Kwai Chiu and Another v. Wong Shin ("The Shell Case") (1900) 9, Commonwealth International Law Cases, 298

20 D'Emden v. Pedder (1904) 1 C.L.R., 91

21 West Rand Central Gold Minning Co. Ltd. v. The King (1905) 2 K.B. 391

22 Salaman v. Secretary of State in Council for India (1906) 1 K.B. 613

23 The King v. The Earl of Crewe, ex arts Sekgome (1910) 2 K.B. 576

24 Secretary of State for India v. Bai Rajbai (1915) L.R. 42 I.A. 229

25 A.G. of Southern Nigeria v. Holt (1915) A.C. 599

26 Amodu Tijani v. Secretary, Southern Nigeria (1921) 2 A.C. 399

27 Vajesingji Joravarsingji and Others v. Secretary of the State for India in Council (1924) L.R., 51, I. A. 357

28 Pong Wai Ting v. A.G. (1925) H.K.L.R. 22

29 Nadan v. R.(1926) A.C. 482

30 Croft v. Dunphy (1933) A. C. 156

31 Sammut v. Strickland (1938) A.C. 678

32 Hoani Te Heuheu Tukino v. Aotea District Maori Land Board (1941) A.C. 308

33 Secretary of State for India v. Sarda Rustam Khan (1941) A.C. 356

34 Naim Molvan v. A.G. for Palestine (1948) A.C. 351

35 Republic of Italy v. Hambros Bank, Ltd. (1950) 1 Ch. 314

36 Nyali v. Attorney General (1956) 1 Q.B. 1

37 Oyekan v. Adele (1957) 2 All E.R. 785

38 In re Wong Hon (1959) H.K.L.R. 601

39 Ibralebbe v. R. (1964) A.C. 900

40 Salomon v. Commissioners of Customs and Excise (1966) 2 All E.R. 871

41 In re. Tse Lai Chiu, Deceased (1969) H.K.L.R. 159

42 Rediffusion Hong Kong Ltd. v. A. G. (1970) H.K.L.R. 231

43 Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G. 1975A.C. 591

44 Watford Construction Co. Ltd. v. Secretary for New Territories (1978) H.K.L.R. 410

45 Lam Yuk ming v. A.G. (1980) H.K.L.R. 815

46 Melhado Investment Ltd. v. A.G.
(18.5.1982) unrep. H.C.M.P. No. 1532/1981
(13.3.1983) unrep C.A. No. 79/1982(CIVIL)

H.C.M.P. NO 982 OF 1982

LIST OF TEXTS AND LEARNED WORKS CITED BY COUNSEL

1. Halsbury's Laws, 4th Edition, Volume 6.

2. Halsbury's Laws, 3rd Edition, Volume 36.

3. Maxwell, Interpretation of Statutes, 12th Edition.

4. Craies, Statute law, 7th Edition.

5. Roberts-Wray, Commonwealth and Colonial Law.

6. Hood Philips, Constitutional and Administrative Law, 6th Edition

7. Wesley-Smith, Unequal Treaty.

8. Wade and Phillips, Constitutional Law.

9. Chitty, Law of the Prerogatives of the Crown.

10 Jennings, Constitutional Law of the Commonwealth, Volume 1.

11. Broom's Legal Maxmis, 10th Edition, ed. by R.B. Kersley.

12. Byrne's Law Dictionary.

13. Norton-Kyshe, History of the laws and Courts of Hong Kong, Volume 1.

14. Jenkyns, British Rule and Jurisdiction Beyond the Seas.

15. O'Connell, State Succession in Municipal Law and International Law Volume II.

16. Salmond, The Limitations of Colonial Legislative Power, (1917) 33 L.Q.R. 117.

17. Shorter Oxford English Dictionary.

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.

M.P. No. 982 of 1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANLOUS PROCEEDINGS

BETWEEN

WINFAT ENTERPRISE(HK) CO. LTD Plaintiff

AND
ATTORNEY GENERAL Defendant

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...

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