Read the full judgment text of HCAL 260/2015 on BabelCite. This Court of First Instance judgment was delivered on 8 April 2019 before Chow J.
Constitutional and administrative law – judicial review – Small House Policy – New Territories indigenous inhabitants – Ding rights – Basic Law Article 40 – 'lawful traditional rights and interests' – discrimination on grounds of sex, social origin and birth – whether Private Treaty Grant, Free Building Licence and Exchange protected by BL 40 – meaning of 'traditional' (傳統) – meaning of 'lawful' (合法) – Block Crown Lease – pre-1898 customary land tenure – Subsoil-Topsoil system – standing – delay – whether relief to be refused – The Small House Policy was implemented on 1 December 1972 following Executive Council endorsement, originally as a building policy to address squatter problems and improve housing standards in the rural New Territories. It permits a male indigenous villager aged 18 or above, descended through the male line from a resident in 1898 of a recognised village, to apply once in his lifetime for one of three forms of land grant: a Private Treaty Grant of Government land at concessionary premium, a Free Building Licence on his own land at nil premium, or an Exchange. Between 1972 and 30 June 2018, 10,763 Private Treaty Grants, 28,305 Free Building Licences, and 3,610 Exchanges were granted. The Applicants, who are not New Territories indigenous villagers, challenged the policy as discriminatory on grounds of social origin/birth and sex, in contravention of BL 25 and BL 39 and/or BOR 22, and as failing the Government's duty under BL 7. The court held that the policy is prima facie discriminatory and cannot be justified under the proportionality tests in Yau Yuk Lung or Fok Chun Wa, but the dispositive question is whether BL 40 saves the policy – The court held that BL 40 protects only those 'lawful traditional rights and interests' of the New Territories indigenous inhabitants, and the term 'traditional' (傳統) is confined to rights and interests traceable to those of the indigenous inhabitants before the 1898 New Territories Lease, following Tse Kwan Sang, Koon Ping Leung and Liu Wing Kwong – Whether Free Building Licence is a 'traditional' right: yes, because the practice of allowing villagers to build village-type houses on their own agricultural land for their own occupation, free of premium, was recognised by the British administration from as early as 1905 and endorsed by Executive Council in October 1959, with the concession extended in 1960 to pre-war New Grant Lots – Whether Private Treaty Grant is a 'traditional' right: no, because the right to acquire Government land for building was not a pre-1898 right; Section 15 of the New Territories (Land Court) Ordinance 1900 abolished any pre-existing claims to neighbouring unoccupied land, and the Private Treaty Grant system was a post-1898 creation, with the 1972 ExCo Memorandum showing that the policy was introduced to address housing conditions rather than to preserve traditional rights – Whether Exchange is a 'traditional' right: no, as it is a post-1972 administrative arrangement with no pre-1898 analogue – The court rejected the Applicants' submission that 'lawful' in BL 40 imports a Qing-law requirement, holding that the word is merely descriptive of those traditional rights and interests which were enjoyed by the indigenous inhabitants, and the drafters of the Basic Law would not have been concerned with the state of Qing law before 1898 – The court further held that BL 122, which preserves Crown rent for Old Schedule lots, village lots, small houses and similar rural holdings held by male-line descendants of 1898 villagers, is not inconsistent with the finding that Private Treaty Grant and Exchange are not protected by BL 40 – BL 7 challenge rendered unnecessary – The Applicants have sufficient standing because they are directly discriminated against by the policy on grounds of social origin or birth – Relief should not be refused for delay of 18-21 years, following Leung v Secretary for Justice, given the public interest in determining the constitutionality of a discriminatory policy, the fundamental human rights issue, and the fact that any relief can be crafted not to invalidate existing Small House Grants – Application allowed in part: Private Treaty Grant and Exchange components are unconstitutional and unlawful, but Free Building Licence is constitutional and lawful under BL 40 – Judgment not to take effect for 6 months, with liberty to apply for a longer stay pending appeal.
Legal issues: Constitutionality of the Small House Policy under Article 40 of the Basic Law · Meaning of 'traditional' (傳統) in BL 40 · Whether Free Building Licence is a 'traditional' right · Whether Private Treaty Grant is a 'traditional' right · Whether Exchange is a 'traditional' right · Meaning of 'lawful' (合法) in BL 40 · Standing of the Applicants · Refusal of relief for delay
Outcome: Judicial review allowed in part: the Small House Policy is unconstitutional and unlawful to the extent that it confers benefits in the form of Private Treaty Grant or Exchange, but constitutional and lawful to the extent that it confers benefits in the form of Free Building Licence.
Cited by 27 cases · Cites 3 cases