Basic Law Institute chairman Alan Hoo, whose interesting version of the problem presented by the need for customers on the new Express Link to go through mainland customs and immigration inspired my last outburst, now claims that he was misquoted in press reports of what he said. This is, if true, a pity, because what he now says he said is even funnier.
In a letter to the South China Pravda, Mr Hoo now says that what he said was that Hong Kong “asked to be plugged into the high-speed railway network of the mainland.” This is an interesting way of putting it. Some Hongkongers might prefer to say that this expensive political erection was rammed down their reluctant throats by an unelected government. Given that we have asked for it, though, Mr Hoo says that “it is agreed” — he does not say by whom — that this can only be done by having all the immigration and customs clearance done at the West Kowloon terminus. If the train stopped in Shenzhen for this purpose then “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.”
A few words are in order here about the technicalities of high-speed railways. Trains with a high maximum speed do not depart the station like a Saturn rocket in a burst of skull-bursting acceleration. This would be bad for the passengers and require an unnecessarily vigorous power plant. Similarly it takes them a long time to stop. So our part of the express link will never be a high-speed tunnel. The trains leaving Kowloon will still be accelerating when they reach the border and the arriving ones will be slowing down before they get to Shenzhen. Second point: the purpose of a railway is to provide convenience to the passengers, not to provide an exciting life for the train driver. The passengers will have to go through customs and immigration somewhere. The time this takes, unless it is done on the moving train, will be added to the time taken actually moving on the journey. The timetabled time will be shorter if the clearance is done in Kowloon, but the journey time will be the same because passengers will have to reach the station earlier.
Mr Hoo also seems to have missed the numerous reports that the Shenzhen authorities are very keen to have all trains stop at their station because their express rail link is losing money — as ours no doubt will — and they would like the ongoing trains to be more full.
But Mr Hoo is more entertaining on legal matters. He now says that there was no underground development in West Kowloon in 1997, but the basic law grants “implied rights” for underground development. He says that the new area underground raises “complicated questions of land sovereignty”. It must, he says, 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.” He suggests that the SAR government should “not claim all of the underground development as its territory.”
Unaccustomed as I am to defending the Hong Kong government, this idea that new underground spaces are a sort of vertical reclamation, new territory which can be allocated as convenient to one jurisdiction or another, is based on a large legal error. The idea that the SAR government is being greedy by keeping all this new territory to itself is preposterous.
I am indebted to my mole in the legal profession for an alert to some matters which Mr Hoo has apparently forgotten since he left law school. The fundamental Common Law rule about structures over or under the ground is of great antiquity, and being of great antiquity it is embodied in a burst of Latin, which goes like this: Cuius est solum, eius est usque ad coelum et ad inferos. This may be roughly translated as “if you own the land you own the air above it up to heaven, and the ground beneath down to hell”. It is usually ascribed to an Italian lawyer employed by the English King Edward I, who reigned between 1272 and 1307. The principle is confirmed by the 18th century textbook writer Blackstone: “Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards.” The principle still applies, though the indefinite extent has been somewhat pruned in modern times to accommodate civil aviation in the celestial direction and fracking in the infernal one. But it leaves no room for doubt that any underground railway development in West Kowloon, along with Henry Tang’s basement, the Lion Rock Tunnel, and the South Island Line, are in fact legally and without complication part of Hong Kong, and they do not increase the territory’s size. The SAR government is not “claiming” the space in the express rail station – it owns it, and cannot avoid owning it unless it positively gives it away.
This brings me to the part of Mr Hoo’s letter which needs to be taken seriously, because it tells us what to expect. Apparently there has been talk of a “Shenzhen model” under which the SAR would lease a piece of territory to the mainland security services, allowing it to come under mainland jurisdiction. This would cover, presumably, the relevant floor in the station basement and the trains. Mr Hoo thinks this is “constitutionally unviable”, though he does not say why. After all the Chinese government does not take its constitution very seriously.
The better approach, he says, would be for the State Council to designate part of the station as a “border defence area” and the tunnel as a “restricted zone”. This would mean that the areas so designated would become mainland territory. It would only apply in the identified part of the station “and the sealed tunnel”. I don’t know why Mr Hoo thinks the tunnel would be “sealed”. It will need maintenance, ventilation and emergency exits. Also if the tunnel is unusable for some reason the trains will be diverted to an emergency siding on the surface.
Personally I think the lease idea is the better one because a lease comes with conditions. The lease could specify who was to be stationed in the station and what powers they would exercise. If part of the station becomes effectively China then there are no restrictions at all. This option would make it much easier to kidnap booksellers and other undesirables, which may be why some people like it. I fear, though, that this is the option we are going to get, and Mr Hoo is just doing his bit to soften us up for the bad news, and wrap it in a constitutional smokescreen.