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EXHIBIT 5.3
[Linklaters Letterhead]
Direct line (852) 2842 4821/2842 4150 30 October 2000
e-mail
Our ref CCLL/KHY
Your ref
China Mobile (Hong Kong) Limited
60th Floor, The Center
99 Queen's Road Central
Hong Kong
Dear Sirs
CHINA MOBILE (HONG KONG) LIMITED (THE "COMPANY")
1 We have acted as Hong Kong legal advisers to the Company in connection
with the offering of US$600 million principal amount of convertible notes
("SECURITIES") of the Company (the "OFFERING") under the United States
Securities Act of 1933, as amended (the "SECURITIES ACT") as described in
the draft prospectus (the "PROSPECTUS") contained in the Company's
registration statement on Form F-3, (the "REGISTRATION STATEMENT") filed
with the United States Securities and Exchange Commission (the "SECURITIES
AND EXCHANGE COMMISSION") on 4 October 2000, as amended to date.
2 We have examined originals or copies, certified or otherwise identified to
our satisfaction, of:
(a) certificate of incorporation of the Company;
(b) minutes of a meeting of the directors of the Company held on
4 October 2000 approving, among other matters, the issue of the
Securities and the Offering (the "BOARD MINUTES");
(c) the Memorandum and Articles of Association of the Company; and
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(d) such corporate records, certificates and other documents as we have
considered necessary or appropriate for the purposes of this opinion.
3 We have also examined the results of searches undertaken by us on the
Company:
(e) on 30 October 2000, of the cause book kept at the High Court of
Hong Kong Special Administrative Region ("Hong Kong" or "HKSAR")
against the Company (which revealed no petition for the winding-up of
the Company or for the appointment of a receiver of the Company):
(f) on 30 October 2000, at the Official Receiver's Office of the
Registrar General's Department in Hong Kong; and
(g) on 30 October 2000, at the public files maintained at the Registrar
of Companies in Hong Kong.
4 We have assumed:
(a) the genuineness of all signatures on, and the authenticity and
completeness of, all documents submitted to us whether as originals
or copies;
(b) the conformity to original documents of all copy documents examined
by us;
(c) there have been no amendments to the Memorandum and Articles of
Association of the Company since the date of our search referred to
in paragraph 3(c) above;
(d) the completeness and accuracy in all respects of the information
disclosed in the search results relating to the Company referred to in
paragraphs 3(a), 3(b) and 3(c) of this letter and that the information
entered or contained in or on the relevant registers and/or cause book
has not, since the date as of which such search results were obtained,
been materially altered or added to and that such searches did not
fail to disclose any information which has been delivered for filing
but which did not appear on the public file and was not disclosed at
the time of the relevant search; and
(e) the directors of the Company were the directors of the Company and had
not been removed, resigned or otherwise vacated their respective
offices as directors at the time of adoption of the relevant
Board Minutes and any provisions contained in the Companies Ordinance
(Chapter 32 of the Laws of Hong Kong) or the Articles of Association
of the Company relating to the declaration of directors' interests or
the power of interested directors to vote were duly observed and that
the resolutions set out in the Board Minutes have not been amended or
rescinded and are in full force and effect.
5 Based on and subject to the foregoing and to the qualifications and
reservations set out below, we are of the following opinion:
(a) the Company has been duly incorporated and is validly existing as a
company limited by shares under the laws of Hong Kong; and
(b) subject to (i) the underwriting agreement to be entered into by the
underwriters of the Offering and the Company and the indenture
(the "INDENTURE") to be entered into by the Company and The Bank of
New York becoming unconditional in all respects and not terminated in
accordance with the provisions thereof and each such document having
been duly executed and delivered, (ii) the terms of the Securities and
of their issuance and sale being in accordance with the Indenture so
as not to violate any applicable law, so as to comply with any
requirement or restriction imposed by any court or
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governmental body having jurisdiction over the Company and so as to be
valid and binding under the laws of the State of New York, (iii) the
Securities have been duly executed in accordance with the Indenture
and issued and sold as contemplated in the Registration Statement and
(iv) assuming that the board of directors of the Company or a duly
authorised committee thereof validly passes resolution(s) for the
issue, delivery and performance of the Securities, the Securities will
constitute valid and legally binding obligations of the Company.
6 This opinion is subject to the following qualifications:
(a) enforcement may be limited by bankruptcy, insolvency, liquidation,
fraudulent transfer, reorganisation, moratorium and other laws or
legal procedures of general applicability relating to or affecting
creditors' rights;
(b) enforcement may be limited by general principles of equity;
(c) the choice of the laws of the State of New York to govern the
Indenture and the Securities would not be recognised or upheld by
Hong Kong courts if its application would be manifestly incompatible
with public policy. The choice of laws of State of New York would not
be upheld, for example, if it was made with the intention of evading
the law of a jurisdiction with which the Indenture or the Securities
(as the case may be) had its most substantial connection and which,
in the absence of laws of State of New York, would have invalidated
the Indenture or the Securities (as the case may be) or been
inconsistent therewith;
(d) Hong Kong courts will not enforce any foreign judgment which provides
for the payment of multiple or penalty damages or which is otherwise
regarded as being contrary to public policy in Hong Kong;
(e) Hong Kong courts may refuse to give effect to any provision of the
Indenture or the Securities (i) for the payment of expenses in respect
of the costs of enforcement (actual or contemplated) or where the
court has itself made an order for costs or (ii) which would involve
the enforcement of foreign revenue or penal laws or (iii) which would
be inconsistent with Hong Kong public policy or (iv) which would
involve the court in making a new contract for the parties;
(f) where any obligation under the Indenture or the Securities is to be
performed in any jurisdiction other than Hong Kong, it may not be
enforceable in Hong Kong to the extent that such performance would be
illegal or contrary to public policy under the laws of that
jurisdiction;
(g) claims may become barred under the Limitation Ordinance (Chapter 347
of the Laws of Hong Kong) or may be or become subject to defences of
set off or counterclaim;
(h) undertakings and indemnities contained in an agreement may not be
enforceable insofar as they purport to require payment or
reimbursement of the costs of any unsuccessful litigation; and
(i) the enforcement of the obligations of parties may be limited by the
provisions of Hong Kong law applicable to agreements held to have been
frustrated by events happening after their execution.
7 There is no Hong Kong legislation providing for the reciprocal enforcement
of judgments in the Hong Kong court and the New York State court. However,
a New York State court judgment may be enforceable in Hong Kong at common
law if:-
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(a) it is for a definite sum of money (and not relating to taxes or
penalties);
(b) it is final and conclusive between the parties;
(c) bringing proceedings in the New York State court was not contrary
to any agreement between the parties to the dispute;
(d) the New York State court had jurisdiction to grant the judgment
according to conflicts of law rules under Hong Kong law;
(e) the New York State court judgment was not obtained by fraud or in
breach of the rules of natural justice; and
(f) enforcement of the New York State court judgment would not be contrary
to public policy in Hong Kong.
8 Any final and conclusive judgment (even though an appeal is pending or it
is subject to appeal) given against the Company by any court in the
United States of America may be enforced against the Company by further
action in the courts of Hong Kong but may be subject to re-examination or
re-litigation of the matters adjudicated on.
9 We express no opinion on any law other than the laws of Hong Kong. This
opinion is governed by and construed in accordance with the laws of
Hong Kong and is limited to and is given on the basis of the current law
and practice in Hong Kong. Without prejudice to the generality of the
preceding sentences, we are not admitted to practise law in any State of
the United States or in the People's Republic of China or in the British
Virgin Islands and accordingly, this letter is not intended to constitute,
nor should it be construed as, advice regarding the securities laws or any
other laws of the Unites States or any State thereof or of the People's
Republic of China or of the British Virgin Islands and we express no
opinion as to the jurisdiction of any court of the United States or any
State thereof or of the People's Republic of China or of the British Virgin
Islands.
10 This letter is addressed to the Company solely for its benefit. It may not
be transmitted to or relied upon by anyone else or for any other purpose
or quoted or referred to in any other document or filed with anyone and
neither its contents nor its existence may be disclosed without our prior
written consent.
11 We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the references to us under the heading "Legal Matters" in
the Prospectus. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under
section 7 of the Securities Act, or the Rules and Regulations of the
Securities and Exchange Commission thereunder.
Yours faithfully
/s/ Linklaters
Linklaters