2
(c) Legal Significance
It appears to be accepted by all parties (MOD and HKG) that
MOA's are merely administrative documents detailing agreements between
the MOD and the HKG in respect of land and that they transfer no legal or other
estate. Indeed, in the preamble to the MOA it specifically states that the
land is appropriated and set apart "though remaining vested in the Crown".
In the circumstances, I do not feel that it would be appropriate for me to
offer any new legal views as to the legal significance of the MOA's. Rather
I have considered it sufficient to set out below the views of various
parties which have been expressed over the years concerning the legal
significance of the MOA's:-
"'Deeds of Appropriation' are administrative instruments setting out
agreements reached between HMG and the Hong Kong Government, and are not documents requiring signature under Seal." (Letter d.d. 24.7.67 from MOD, ref. (21)2 in L.0. 2/541/67).
"Since there is no transfer of legal estate in these transactions, it
would seem unnecessary to use a deed of appropriation, which would require to be executed under seal." (Saving Despatch d.d. 4.9.67 from the Governor, ref. (28) in L.0. 2/541/67).
"So far as military lands in Hong Kong are concerned, these remain Crown
land. They are, of course, subject to the Memorandum of Appropriation or
other arrangement under which, while remaining Crown land, they have been appropriated for the Secretary of State for Defence as being required for the maintenance of the garrison and the defence of Hong Kong." (Memo d.d. 4.6.80 from RG (LO), ref. (131) in L.0. 1/541/67).
"The Memorandum of Appropriation is an agreement that certain land is set apart for use by the Military but it confers no legal estate and it would appear that this has been accepted by HMG in previous correspondence." (Memo d.d. 19.1.82 from RG(LO), ref. (7) in L.0. 1/541/67 II).
the HKG has noted that the Memorandum of Appropriation is intended
to be an administrative acknowledgement of the MOD's right to occupy HKG land
for certain purposes. It does not confer any title as such to land and its provisions should therefore reflect the principles established in the DCA concerning land holdings by MOD." (Letter d.d. 25.7.83 from Lands Dept., ref. (81) in L.0. 1/541/67 II).