Government Lease
Hong Kong has been implementing the “leasehold system” since the mid 19th Century. In Common Law, there is no requirement that the land boundaries of a Government Lease must be carefully measured out or meticulously described. When the bounds of the Government Lease can be located on the ground, any description capable of identifying the piece of land as a whole is sufficient.
To re-establishment the land boundaries of an early Government Lease, it is necessary to construe the Government Lease as a whole. According to Section 3 of the Interpretation and General Clauses Ordinance (Cap 1), a Government Lease means a lease of land granted by or on behalf of the Government, and includes:
(a) an instrument whereby
(i) the term of lease has been extended; or
(ii) the provisions of the lease have been varied;
(b) an agreement for such a lease; and
(c) a Crown lease.
Descriptions of Land Parcel
The parcel clauses of a Government Lease contain information about the location, dimension or boundary information in the form of written description whereas the plan annexed to the Government Lease contains graphical description of the land parcel.
The effect of the phrase “more particularly described/delineated on the plan annexed hereto” in the parcel clauses is that the plan will augment or cover any deficiencies in the descriptions and will therefore generally prevail over the written description (Eastwood v Ashton [1915] AC 900, HL).
When the plan is stated to be “for identification purposes only”, the parcel clauses will normally govern the descriptions. The principle effect of these words is to confine the use of the plan to ascertaining where the land is siutated and to prevent the plan controlling the written description of the land parcel. In such case, the plan is used to show the general location of the land but not its precise extent (Moreton C Cullimore (Gravels) Ltd v Routledge [1977]). Whilst an “identification only” plan cannot override anything explicit in the parcel clauses, if the parcel clauses are vague and uncertain, a plan “for identification purposes only” might still be used to determine the extent of the land (Wiggington & Milner Ltd v Winster Engineering Ltd [1978]).
Where both forms of expression are used together, as in the phrase “for the purposes of identification only more particularly delineated”, they tend to be mutually stultifying. Such language is confusing and inconclusive, and it does not give the plan any predominance over the parcel clauses. In such a case the Land Surveyor must establish the true construction of the Government Lease (Neilson v Poole [1969] 20 P & CR 909).
Falsa Demonstratio Non Nocet
If there is a clear definition of the extent of the leased land in the parcel clauses but an incorrect description is added to it, the incorrect description may be disregarded under the principle that falsa demonstratio non nocet (a false description does not harm).
Use of Extrinsic Evidence
The general rule is that evidence from sources outside the Government Lease (extrinsic evidence) is not admitted to contradict, vary or add to the terms of the Government Lease which clearly defines the piece of land. However, extrinsic evidence is admissible to show what the boundaries of the land were before the conveyance was made as this tends to prove that it was intended to convey (Van Diemen’s Land Co v Table Cape Marine Board [1906]).
General Boundaries
The boundaries delineated on the plans of the early Government Leases are “general boundaries”, which means that the precise boundaries are to be determined on ground. General boundaries are approximate unless actions are taken to determine the boundaries, for example, a lease survey in the conditions of grant.
Court Judgments
In the boundary dispute case of Chun Yik Chung v Stephens [1885], the Supreme Court of Hong Kong held that measurements in the Government Lease could not relied entirely upon where the ground had been built upon with the assent, express or implied, of the Government and the adjoining lot owners.
In the boundary dispute case of Dior v Lam [1973], the Supreme Court of Hong Kong held that according to the General Conditions of the land sale, the area, boundaries and measurements shall be determined by the Government , notwithstanding the shape of the land parcel as determined by the Government was different from its shape as delineated in the original sale plan.
Old Schedule Lots
For the Old Schedule Lots (OSL) held under the Block Government Lease (BGL), the indenture of BGL states that the piece of land described in the schedule is more particularly delineated and described on the Demarcation District (DD) Sheet attached to the BGL. The DD Sheets were drawn in relatively small scale and the land parcels marked therein bore no absolute positional relationship to a survey system, thus the DD Sheets contain ambiguity in the boundary definition. Since the boundary definition is not plain in the BGL itself, extrinsic evidence of material facts existing at the time of the OSL was granted is necessary in the re-establishment of the land boundaries.
The DD Sheets actually show the general boundaries of occupations at the time of the DD Survey between 1898 and 1903, the re-establishment of land boundaries of OSL is therefore to locate the original features which formed as boundaries delineated in the DD Sheet at the time when it was drawn up.
If the descriptions of the land in the Government Lease and the physical occupation on ground are conflicting, it is the duty of the Land Surveyor to discover all secondary and extrinsic evidence such as the DD Field Sheets, Field Area Statements, old survey sheets, old aerial photographs, records of Crown rent payment and relevant office records. The Land Surveyor also needs to make local enquiries and to collect particulars as to occupation of surrounding lands, so that in cases of dispute or otherwise, to indicate the most probable position of any desired land boundaries and state his reasons.
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