26
THE HONGKONG WEEKLY PRESS AND
Ordinance not to grant a title and referred the matter for compensation. The Crown had not
The Chief Justice-In his own evidence Ho❘ been represented at the hearing by the Land Court, and now for the first time came into the Lap Pan said his application was "for a fishing case. The Attorney-General on examining the ground. Private property I had nothing to do evidence upon which the Land Court had pro-with. I only took up Government waste." ceeded concluded that it did not in his opinion Mr. Sharp went on to say that the next docu- justify the judgment. The Crown at that time ment was a letter which they said was a forgery. had no right to appeal, but in August of 1903 It was a letter purporting to be privately an amending Ordinance was passed giving that written by the San On magistrate and to be a right, and the Attorney-General obtained leave reclamation grant. It was entirely inconsistent to appeal and filed affidavits for the Crown, the with the proclamation. Another point against this document was that in 1891 the magistrate respondent to file any, evidence he thought fit
included In order to ascertain what the had clearly no jurisdiction to grant a reclama- in reply. respondent's rights with regard to this area tion licence. Even if it were not a forgery and the magistrate had the power to grant were, at the date of the cession of the New
it would have lapsed by non-use. Territory, it was necessary to enquire into the it, Chinese law, which bore upon the case, and that, It was obligatory to build a sea-wall within be thought, their Lordships would find very three years and to have the reclamation com. fully set out in the affidavits.
pleted and registered within six.
The Chief Justice-What I understand about this case so far is this, that owing to the representations made to the Land Court, the Land Court, instead of deciding that he had a fishing licence for which he paid $5 a year (which was a very fair common-sense estimate of what rights he had), allowed his claim that the whole foreshore belongs to him as if it was a freehold. He makes out he got the absolute property of 125 acres at $5 a year, that being the whole of the foreshore, shutting off all access to the country.
Mr. Sharp-Yes; for a distance of between two and three miles.
The Puisue Judge-He produced a document which they said was good; is not that the case? Mr. Sharp said such a document was produced, but a very material point in the evidence was that the letter was a forgery. It appeared from the affidavits that all the land orig gally belonged to the Emperor. All the land in China might be considered as divided under two heads-(1) cultivated land or land built It seemed upon, and (2) Government waste. that it was, only for cultivated land or land built upon that absolute ownership in the subject could exist. It must be entered on the tax register and it paid land-tax to the Government, and it was the absolute property in perpetuity of the holder. Government waste land consisted mainly of foreshores, sandbanks, Such land seabeds, and land of that character, could not be owned absolutely by a subject. Licences under which rent, not land-tax (there fore these were not registered in the land register), was paid were issued in respect of Government waste land. These licences were of two classes-licences to reclaim and licences to obtain some specific profit from the land. The second licences conferred no right to re- claim. Liceuces to reclaim obliged the licencee to erect a sea-wall within three years aud to complete and register his reclamation within six years. He had got to use his licence, other wise it was taken away from him. It was also important to observe that these licences to reclaim were until the year 1886 in the gift of the district magistrate. In 1886 that power was transferred to a board. Yet the claimant said this licence was granted by the district magistrate. As to the second class of licences under which this fell, the licences to obtain some specific profit merely out of the land, the commonest instance of these appeared to be fish- ing licences, which appeared to include the right These licenebs were to erect fishing stations. yearly licences revocable at the will of the district magistrate or any officer superior to him. and they were still in the gift of the district magistrate. Until 1886 the licences to reclaim were in the gift of the district magis- trate. The licences to fish were in the gift of the district magistrate. Authority would appear to be unnecessary that licences to fish did not coufer absolute ownership of the land. However the Crown had collected a very strong body of evidence on that point. The claimant's case at the Land Court was supported by a certain amount of oral evidence and by certain doon- ments. The oral evidence amounted to nothing at all.
The claimant said he knew nothing about the matter and that he received these documents from his father in 1901. The sole enquiry by the Land Court appeared to have been as to the boundaries of this land and not to the claimant's rights within these boundaries. The case clearly depended on the documents. First was the San On Magistrate's certificate in
•
[January 11, 1904
1891 that this fishing licence had been granted. ¡ value. This, his Lordship went on to my, was Next was the proclamation.
an appeal from a judgment of the Land Court delivered on 7th December on the claim of Ho Lap Pun. The Land Court found that on 27th November, 1891, a concession covering an ares of 600 odd mow of land was granted by the San On Magistrate to the respondent. They point- ed out that a rent of 85 was to be paid annually till reclamation, and there was then to be an ap- propriate tax. They seemed to have chiefly gone on the consideration of the Exhibits C. E. and H, because they said on consideration of these exhibits it seemed olear that the con.. cession
land above sea-level as well as land covered by water. They did not say in the judgment at all what the concesssion was. When they turned to the documents referred to they found the first, CI, was the certificate which purported to be a certificate of title granted in 1891 by the magistrate of San On. To see what that certificate meant it was advisable in
The Chief Justice remarked that in his appli- cation for a grant of this land the claimant said he had long resided in Kowloon and earned his livelihood by farming and fishing.
On the claimant being asked if that statement was true, he said it was false, but that it was necessary to go through a lot of forms in getting grants from the Chinese Government.
The Chief Justice-But not to tell a lot of bes.
Mr. Sharp, proceeding with his argument, said there was no question of moral hardship in the case.
Claimant's moral case was as weak as his legal case. He had supported his claim by a forged letter or a letter which there was the very strongest possible reason for believing to be forged, and also by a mistranslation; and he submitted no sympathy could be extended to a claim of that character. He asked their Lordships to say this was a mere licence for fishing, to reverse the decision of the Land Court, and to say that this land belonged to the Crown and that the respondent had only shown himself entitled to a fishing licence from year to year revocable at the will of the Government, The Chief Justice said it had been shown prima facie on the part of the Crown that the Land Court was misled by certain documents placed before them and a map which was assumed to be genuine into giving the claimant an He absolute title to a large area of foreshore. understood him to say he knew nothing about the matter personally, but got these papers from his father. Had the claimant anything to say in support of his claim?
The claimant said in reply that it was stated in his petition to the San On magistrate that the land was for the purposes of a dock.
The Chief Justics remarked that he was informed that it was a fishing-station and not, a dock that was mentioned in the document. In his petition, too, the claimant stated that he had long resided in Kowloon, making farming and fishing his occupation. That was simply
false.
The claimant answered that that was the style followed in making such applications to the Chinese Government.
The Chief Justice said a man who wanted a dock would not put into his petition that he passed his time in fishing and farming. He would be more likely to put in that he was a skilful engineer.
The claimant repeated that the word “dock' was in his petition.
he Attorney-General pointed out that in the letter from the Viceroy the words "pools for catching fish" were used. The Land Court rejected the word “dock.” ↓
he Chief Justice asked the claimant why he did not make the dock ?
The claimant stated that there would have been difficulties with the Customs, and they had not sufficient money to start the company.
The Attorney-General mentioned that claimant's solicitors had retired from the case, Being asked how this happened, claimant said he had no money to pay them.
The Chief Justice addressing the claimant said it was alleged that one of his letters was a forgery. If he knew it was genuine he ought to have got the San On magistrate, who was said to have written the letter, to sign an affidavit to that effect. The Crown did not dispute that he bad at one time certain fishing rights for which he paid $5 a year and he should get compensation for that. That would be the proper judgment to give, leaving the Land Court to assess the
the first place to consider the petition which was made and which was recited in the Certificate and to look at the words of it. It began by saying that the claimant pre- sented a petition stating that he had long resided in Kowloon making farming and fishing his ocompation. Mr. Ho Lap Pun now said that he never did reside at Kowloon and never made farming and fishing his occupation. It was clear therefore that at the very inception of this petition there was a false statement made to the magistrate. Then it went on to say that he found adjacent to where he was residing (that is, adjacent to Kowloon, where he was not residing) there was a zone of seashore which was Government waste and not private property and that it was a fit place to catch fish and put a station up. When this claim was before
the Land Court the claimant translated this into "a fit place to make a dock." He could only say it was difficult to see why he said he was a man who made fishing his occupation if he wanted to put a dock up, and he understood, that on consideration, before the Land Court made their judgment, the translation was found to be inaccurate and it was amended and translated as it now was, "to put a station up," that was, a matshed or even a pool for keeping fish. At any rate, it was not a dock in the modern sense of the word "dock." It was no use opening that question up again because it was decided by the Land Court that it was meant for a station. That was one of the considerations upon which they gave their judgment. Then came the certificate of title. In accordance with the terms of this certificate he was to take upon lease the zone of seashore at a yearly rental of $5. It was clear to his mind that what the magistrate intended to grant by that was something suited to the application, which was that of a fisherman for the rights of catching fish on a piece of land which he repre- sented as close by the place he lived. It was not adjacent to where he lived but he got his licence and the magistrate gave him a fishing licence at $5 a year. Some years after that, in 1898, the cession of the Now Territory was effected by treaty and no doubt many ingenious persons saw that there was a magnificent field open for them to make claims along the foreshore, which were of very little value under the Chinese Government but which were of very great valne as soon as the the land was taken over and the fore-
shore on the other side became British territory and a part of the foreshore abutting on Hongkong Harbour. The temptation must have been very great to some ingenious persons to make every sort of claim they possibly could in order to increase such rights as they had-small rights like fishing-into claims for absolute ownership of the land. In this case the claim put forward was for $50,000, and Not only $5 a year was being paid for it. until after the cession was contemplated was it thought worth while to pay up the back
$5 for rent,
six years
to up
the time of the cession. Having done that was put in under the treaty the claim to have the whole foreshore held under an absolute title, and if they did not get a title of that description they claimed to be paid by the ratepayers of Hongkong, the sum of $50,000 as compensation. It would be certainly a scheme which would present enormous attrac tions. They had seen so far that the magis
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