Best solution for dealing with checkpoints at Hong Kong’s high-speed rail link
I refer to the report, “ ‘Absurd’ claim sinks rail feud to new low” (May 20), which failed to reflect what I had actually said.
I was interviewed on “Dual inspection in West Kowloon Terminus” on May 19 on RTHK Radio One. I said Hong Kong asked to be plugged into the high-speed railway network of the mainland and it is agreed that this can only be done by having dual inspections (either at the start or end of the journey) at West Kowloon terminus. It is impossible to stop the train in Shenzhen for passengers to clear immigration and customs. This would mean the Shenzhen-Hong Kong journey was no longer high speed and that the money spent building the high-speed tunnel had been wasted.
I said the “Shenzhen Model” for the West Kowloon terminus was constitutionally unviable. The idea is to lease a piece of the Hong Kong SAR autonomous area to mainland authorities, thereby surrendering our legal jurisdiction over that area. This would, in effect, allow mainland authorities to enjoy “extra-territorial jurisdiction”.
The better approach is to regard the mainland inspection area and connecting high-speed rail tunnel as a “border defence area” and a “restricted zone”, respectively, applying mainland jurisdiction. This could be done through a State Council Order, similar to the order which defined the Hong Kong autonomous region. The order would only apply to the defined area of inspection checkpoints (and the sealed tunnel).
On July 1, 1997, the West Kowloon area was a surface area with no underground development. Article 7 of the Basic Law grants delegated land rights to the SAR government and also implied authority for underground development (consistent with pre-handover land policy in Hong Kong). In this context, I pointed out two important aspects – the present excavated underground area in West Kowloon introduced a complicated question of land sovereignty; and, it must be recognised that the autonomous area at West Kowloon under the Hong Kong SAR has not decreased because of the West Kowloon underground development, but increased.
The SAR government should be more prudent and not claim all of the underground development as its territory under Article 7. It should claim most of that area as its territory except for that portion which can reasonably be regarded as a border defence area of the country. This will avoid the unnecessary constitutional problems that the “Shenzhen Model” would inevitably create.
Alan Hoo, QC, SC, Central