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Hong Kong localism and independence

Hong Kong government will have uphill job forcing out Foreign Correspondents’ Club at just three months’ notice, legal experts say

Clause in lease agreement made public on Wednesday says government can terminate FCC’s lease if building is ‘not being used to its satisfaction’

PUBLISHED : Thursday, 13 September, 2018, 8:33am
UPDATED : Thursday, 13 September, 2018, 11:29pm

Legal experts said on Thursday the Hong Kong government would have a tough job forcing the Foreign Correspondents’ Club from its city centre premises for breaching the terms of its lease, during a running furore over it hosting a speech by a separatist.

Angry that the FCC gave a platform to pro-independence activist Andy Chan Ho-tin on August 14, former chief executive Leung Chun-ying called for the club to be evicted from its government-owned plot, saying leaseholders “could not invite whoever they want, to talk about whatever they want”.

Under a lease signed in December 2015, while Leung was in office, the government can terminate the agreement with three months’ notice if the premises are “not being used to [its] satisfaction”.

But former Bar Association chairman Edward Chan King-sang, an expert in land law, said on Thursday that while it was “very common” for government lease agreements to include clauses allowing it to take back buildings or land, they were rarely exercised, except when a tenant commits a crime.

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He asked: “If what Chan did was unlawful, why has no prosecution been brought against him?”

He and barrister Duncan Ho Dik-hong said they had not previously seen the term “not being used to [its] satisfaction” in a government lease, but they felt the government would have to show “reasonable grounds” before using the clause to terminate a lease.

Edward Chan said the government would also have to prove its dissatisfaction in the context of the full lease, which lists several things the FCC had to do, including preserving the building, taking care of the premises and paying the rent on time.

He said the terms did not enable the government to evict the FCC just because the premises were “not being used the way it wanted”. Besides, he added, whether or not Andy Chan’s speech flouted Hong Kong law by being inconsistent with the Basic Law was “highly debatable”, as the mini-constitution protects freedom of speech.

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Andy Chan is leader of the pro-independence Hong Kong National Party, which faces a police ban. The FCC ignored protests over its decision to invite him and went ahead with his talk, saying it was held in the name of free speech. But Leung and other pro-establishment politicians lashed out, demanding the termination of the lease.

The club, which is 75 years old and has more than 2,000 members, occupies five floors of prime property at 2 Lower Albert Road, taking up 17,975 sq ft. It has been at the site, on which it currently pays HK$580,000 per month in rent, since 1982.

Under the terms of the 18-page lease agreement, which the Financial Services and the Treasury Bureau sent to the Post, the FCC is allowed to lease the property until 2023.

The agreement says that as a tenant, the FCC is “not to use, or permit or suffer to be used, any part of the premises for any illegal or immoral purposes”, and that what constitutes illegal or immoral purposes will be determined by the government.

The club also agreed not to do anything in the building that might “become a danger, a nuisance or annoyance” in the opinion of the government.

Another clause stipulates the FCC has to comply with all regulations, rules and requirements of any government department relating to the use and occupation of the premises.

Referring to the club in a Facebook post on Thursday morning, former chief executive Leung asked: “Are you all satisfied with the use of the premises?”

Leung, who stepped down in June 2017, said on Thursday: “If the FCC invited someone to promote independence [before the renewal], I definitely would not have agreed to renew the FCC’s tenancy.”

On Thursday, the club said it would not give any new comment on the issue.

After Andy Chan’s speech, current Hong Kong leader Carrie Lam Cheng Yuet-ngor said the focus should not be on whether the government should continue leasing the site to the FCC. Rather, the issue was that the club had breached the “bottom line” of “morality” and “responsibility” by providing a platform to advocate Hong Kong independence that had “hurt the feelings of the Chinese people and Hong Kong people”, Lam said.

Her deputy, Chief Secretary Matthew Cheung Kin-chung, said the government “has a cordial relationship with the FCC and I’m sure this relationship will continue”, the same day that the Chinese Ministry of Foreign Affairs’ office in Hong Kong condemned the FCC for hosting Chan.

Additional reporting by Ng Kang-chung