Any provision saving the rights of Her Majesty, Her Heirs and Successors shall be construed as saving the rights of the Central People's Government of the People's Republic of China and the rights of the Government of the Hong Kong Special Administrative Region under the Basic Law or other laws."
APPLICATION OF PRINCIPLES
- Construction of certain references to Crown
(1) Where it is expressly provided in an Ordinance that the Ordinance -
(a) affects or does not affect the right of; or
the Crown, then that reference to the Crown shall be construed as a reference to the State.
(b) is or is not binding on,
(2) Subsection (1) does not prejudice the operation of section 2A(2)(c) of this Ordinance, whether before, on or after the commencement of this section."
4. Under the current Adaptation of Laws programme, references to "the Crown" will be adapted on the basis of the above principles.
References to "the Crown" relating to land
5. Section 1(a) of Schedule 8 of Cap.1 quoted above reflects the first part of Article 7 of the Basic Law which states that land shall be State property. Article 7 further states that the HKSARG shall be responsible for the management, use, development of land and for its lease or grant. Provisions in various Ordinances, where references to "the Crown" in relation to land are found, deal with the management, use, development, lease and grant of land (as opposed to its title). Accordingly, the Adaptation of Law (Crown Land) Ordinance (Ord. No.29 of 1998) has adapted references to "the Crown" in relation to land to "the Government" (defined in Cap.1 to mean the HKSARG). Section 6 of Cap.1 eliminates any possible implication that the HKSARG owns land and is set out below -
"6. References to Government property
(1) Where reference is made in any Ordinance to property and the expressions used in relation thereto imply that the property is owned by, belongs to, or reverts to, the Government, or convey a similar meaning, the reference shall be construed in accordance with Article 7 of the Basic Law.
(2) In this section, "property" () means any of the land and natural resources within the Hong Kong Special Administrative Region."
Matters under the Sole Responsibility of the HKSARG
6. In provisions which confer powers over matters for which the HKSARG is solely responsible, references to "the Crown" will be changed to "the Government" (defined as above-mentioned) in accordance with section 2 to Schedule 8 to Cap.1 quoted above. Examples of such provisions include -
(a)Debt Due to the Crown: Provisions to the effect that an unpaid fine, penalty, contractual payment, etc., is recoverable as a debt due to the Crown should be adapted so that it is recoverable as a debt due to the HKSARG
Ordinances applying to/binding on the Crown
(b)Forfeiture to the Crown: Provisions to the effect that property, money, etc., is to be forfeited to the Crown (in the course of enforcement of drug control legislation, for example) should be adapted so that it is forfeited to the HKSARG.
7. Provisions to the effect that an Ordinance (or part of it) -
(a) is binding or not binding on the Crown; or
should be adapted in accordance with section 7 of the Schedule 9 of Cap.1.
(b) applies or does not apply to the Crown,
8. However, each provision should be considered individually in case there is any reason to adapt it differently (for example, in the case where the original provision does not truly serve the same purpose as a binding effect provision).
9. In selecting the appropriate adaptation, the various principles in Schedules 8 and 9 of Cap. 1 should not be applied mechanically if this would produce a result that does not make sense in the context of other adaptations or would lead to inconsistencies within the Ordinance concerned or with other Ordinances.
Department of Justice