A 1994 Sino-British deal suggests only that a military berth that splits the newly reclaimed Central harbourfront should be used by - not handed over to - the People's Liberation Army, a legal scholar says.
The view of Eric Cheung Tat-ming, an assistant professor at the University of Hong Kong, runs counter to that of the government, which says the berth is a military site that must be handed over to the PLA.
His remark yesterday came as the government and harbour protection activists remained in a dispute over public access to the berth.
"If you look at the construction of the agreement and the use of words, it is quite clear to me that the berth is not among the batch of 'military sites' to be handed over, but rather, it is just a 'facility' to be re-provisioned for and used by the army," Cheung said.
"The government need not hand over the berth to the PLA. Public use of the land comes first, and the occasional military vessels' use comes second."
He said that when the PLA was not using the berth, the government should have the right to manage it.
The activists do not object to the provision of the 3,000 square metre berth.
But they oppose its rezoning from "open space" to "military" use for fear of restricted access - despite the army's earlier promise to open it to the public when not in use.
The 1994 deal, struck before the change of sovereignty, spells out arrangements for more than 40 military sites and facilities.
It divides the sites in three batches - 14 "military sites" to be handed over to the PLA for defence purposes, 25 to be surrendered to the government for non-defence use and a third batch of five facilities and buildings, including the berth, to be re-provisioned for the PLA's use.
The treaty says the Hong Kong government should "leave free 150 metres of the eventual permanent waterfront in the plans for the Central and Wanchai Reclamation ... for the construction of a military dock after 1997".
It does not say the government should hand it over.
But the Development Bureau said the berth was considered a military site.
Therefore, as with any military site, the government need not sign any land grant or memorandum with the PLA, as it was governed by the garrison law.
Winston Chu Ka-sun, adviser and former chairman of the Society for Protection of the Harbour, said he would take it to court as a last resort if petitions to the chief executive, Legislative Council, and the Town Planning Board did not stop the rezoning.
But Cheung said that grounds for a judicial review "would be rather weak".