TNAG-1400-FCO40-1872-Future-of-Hong-Kong-Ministry-of-Defence-(MOD)-property-1985 — Page 60

Question 4.

A/ If the present system is maintained on the basis of 1, 2 and 3 above will the Crown have a legal interest in any of these lands running beyond 1.7.1997?

(i)

The answer to this question and the position

generally relating to Crown land after 1.7.1997 is to be found in the Joint Declaration (the Declaration).

Para 2 of

the Delcaration states. that Hong Kong is to be handed back to the People's Republic of China (PRC) with effect from the 1.7.1997 and under para 3(1) a Special Administration Region (SAR) is to be established which according to para 3(2) will

enjoy "a high degree of automony" except in foreign and defence affairs. Para 6 declares that land leases should be dealt with in accordance with Annex III (the Annex) which

covers all leases of land in Hong Kong including the New

Territories. My understanding of these paragraphs is that all the land (including Crown land) in Hong Kong will, subject to the provisions of the Annex, be handed back to the PRC on the 1.7.1997 to be administered by the SAR.

(ii)

If I have not missed the point, the simple answer to the question posed above is that the Crown itself will not retain any legal interest in any land beyond 1.7.97. Perhaps what the question is attempting to establish is whether the Crown, through some other legal entity would (if permitted by the PRC or SAR) have a legal interest in lands covered by documents referred to in Questions 1, 2 and 3 running beyond 1.7.97. I have responded below to the question on this basis.

(iii)

Any lands occupied by the Military, which are not covered by the provisions on the Annex i.e. which remain vested in the Crown, would in my view be handed to the PRC and administered by the SAR unless, of course, the exemption in para 3(2) of the Declaration covers Military Lands in which case they would presumably be administered by the PRC. MOA referred to in Question 1 would fall under this head provided the generally accepted view is correct that MOA's are merely administrative documents and there is no transfer of the legal

The

estate. (iv) As far as the TOP is concerned referred to in Question 2 this is essentially a contractual licence or agreement for a term certain and thereafter periodically until

Para determined and would be covered by para 2 of the Annex.

2 of the Annex provides for the extension of leases but presumably would not include TOP's on the basis that they would fall within the exemption "except Short Term Tenancies

/and Leases

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