Article 122 of the Basic Law and inter vivos gift of land

In Secretary for Justice v Chung Kam Ho ([2013] HKEC 1667, CFI) a father assigned land to his son. Both father and son were indigenous villagers of the New Territories. The Government brought an action against the son to recover arrears of Government rent. The son relied on articles 40 and 122 of the Basic Law and contended that he was not liable to pay this rent. The court decided for the Government on the basis that it was bound by the decision of the Court of Appeal in Lai Hay On v Commissioner of Rating and Valuation and Director of Lands. That case had decided that succession (for the purposes of article 122) took place only on death and not as a result of an inter vivos gift.

Nor was the action time-barred by virtue of the Limitation Ordinance. The relevant provision is section 4(1)(d) of the Ordinance. The cause of action accrues when the demand note is issued ([24]).

The son’s contention that the matter raised a question of the interpretation of the Basic Law and that an interpretation by the NPCSC was needed was rejected. It amounted to a misreading of the second paragraph of article 158 of the Basic Law.

MichaelLower

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