CONFIDENTIAL
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1:
with my personal opinion that the land forming the City of Kowloon was from the outset part of the newly-leased territory forming the New Territories, that I believe the courts have jurisdiction in relation to the action referred to by the Registrar General.
9.
As the Registrar has pointed out in paragraph 6 of his memo, the Land Registration Ordinance (Cap. 128) makes reference to "the title to real and immovable property", there being no stipulation that the real property must be the subject of a Crown lease. The land which is the subject matter of the High Court action giving rise to the application to register the Writ of Summons and the Statement of Claim as lis pendens in the Land Office, is located in Dai Cheng Street, Kowloon Walled City and is therefore situated within the Colony of Hong Kong. On this basis alone I agree with the Registrar General when he expresses the opinion that, it being real property, he is under a statutary objection to register the Writ and Statement of Claim as a lis pendens.
10.
Turning now to the question of presumption, I am of the opinion that because the land on which the City of Kowloon is built was part of the newly-leased land referred to in the Convention and thus forms part of the New Territories, it is Crown Land. Personally I believe it to have been Crown Land since the date of the Convention, notwithstanding possible arguments which may arise out of the question of jurisdiction, but even if I am wrong, it surely must have become Crown Land following the enactment of the Kowloon City Order in Council in 1899. To take it a step further, I quote section 8 of the New Territories Ordinance (Cap. 97) :-
"All land in the New Territories is hereby declared to be and
to have been from the 23rd day of July, 1900, the property of the Crown, and all persons in occupation of any such land shall be deemed to be trespassers as against the Crown, unless such occupation is authorized by grant from the Crown, or by other title allowed under this Ordinance, or by licence from the Governor or from some Government officer having authority to grant such licence."
11.
If it is accepted (a) that the land in question is Crown Land and (b) is in the New Territories it follows, in my view, that it is land which comes under the provisions of sections 7 and 17 of the Limitation Ordinance (Cap. 347). So far as I am aware it is land which, with possibly one exception, has never been occupied by the Crown but is land which, in the light of sect. 8 of Cap. 97, to a greater or less extent has been occupied by persons who can only be described as adverse possessors. As you are aware, the limitation period for the purposes of sections 7 and 17 of Cap. 347 is sixty years and we have now gone well beyond that. It follows that I am of the opinion that where adverse possession for the statutory period can be proved the Crown's right to
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