In Li Kwok Ching v Secretary for Justice [2015] HKEC 552, CFI) the plaintiff was the Government lessee of land near Sheung Shui. He sought a declaration that the Government was barred from recovering possession of neigbouring unleased land by virtue of the doctrine of encroachment. The claim failed because the plaintiff was unable to establish that he had been in possession for the sixty year period demanded by section 7(1) of the Limitation Ordinance. In case, he was wrong on this, however, Godfrey Lam J. went on to consider the Government’s contention that the handover started time running afresh against the Government.
The argument was that the Peking Convention made the British Government a lessee of the land in the New Territories. The effect of the handover was to bring that lease to an end and to give possession to the Government of the Hong Kong SAR (on behalf of the Chinese State). Thus, time started running again against the Government of the Hong Kong SAR in 1997. The plaintiff’s possession up to 1997, it was argued, could only possibly have affected the title of the British Government.
Godfrey Lam J. rejected the Government’s argument on the basis that the Peking convention did not grant a leasehold estate. The Peking Convention operated at an international level and did not create an estate in land that was justiciable in domestic courts ([75]). As far as this type of inchoate encroachment claim was concerned, the Government of the Hong Kong SAR simply stepped into the shoes of the British Government ([76]). Article 120 of the Basic Law made it clear that the Goverrnment’s rights to land were subject to leases in existence in 1997 and ‘all rights in relation to such leases”; the rights of one who, like the plaintiff, had encroached upon Government land were among such rights ([80]). The Government’s argument failed.
Michael Lower
