Kwok Cheuk Kin and Another v. Director of Lands and Others
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 9 cases · Cites 21 cases
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HCAL 260/2015 [2019] HKCFI 867 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 260 OF 2015 ________________________
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________________________ JUDGMENT ________________________ This Judgment shall be divided into the following Sections: 1.The central issue which arises for determination in this application for judicial review is whether the discriminatory Small House Policy is rendered constitutional and lawful by Article 40 of the Basic Law. 2.The answer to that question depends on whether the rights or interests enjoyed by the beneficiaries of the Small House Policy (hereinafter referred to as the “Ding rights” (丁權)) form part of the “lawful traditional rights and interests of the New Territories indigenous inhabitants” (新界原居民的合法傳統權益) within the meaning of Article 40 of the Basic Law. At present, the Ding Rights take three principal forms of land grant by the Government, known as (i) “Private Treaty Grant”, (ii) “Free Building Licence”, and (iii) “Exchange” (hereinafter collectively referred to as “Small House Grants”). For reasons which I shall endeavour to explain in this judgment, I am of the view that only “Free Building Licence” can properly be regarded as a lawful traditional right or interest of the New Territories indigenous inhabitants, while “Private Treaty Grant” and “Exchange” cannot be so regarded. Accordingly, the Small House Policy to the extent that it confers benefits on the eligible New Territories indigenous inhabitants in the form of Free Building Licence is constitutional and lawful, but not to the extent that it confers benefits in the form of Private Treaty Grant or Exchange. 3.In what follows:
4.The Small House Policy was implemented on 1 December 1972 following its endorsement by the Executive Council on 14 November 1972 (“the 1972 ExCo Decision”)[1]. Since 1972, the details of the Small House Policy have been changed or modified from time to time. The current Small House Policy can be found in a pamphlet titled “How to Apply for a Small House Grant” (December 2014). The following principal criteria must be met before a small house grant may be made[2]:
5.In respect of criterion (1) above:
6.In respect of criterion (2) above, a small house grant includes (i) a Private Treaty Grant (on Government land), (ii) a Building Licence (on private land), and (iii) an Exchange issued under the Small House Policy since its implementation in December 1972, as well as various types of grant prior to its implementation, namely, Land Grant by way of a Restricted Village Auction, Exchange by Surrender and Regrant at reduced or nil premium, and Free Building Licence granted to a villager for the building of a village-type house[5]. 7.In respect of criterion (3) above:
8.A few other points stated in the said pamphlet are of note:
9.In short, under the prevailing Small House Policy, a male indigenous villager aged 18 years old or above who is descended through the male line from (i) a resident in 1898 of a recognised village in the New Territories, or (ii) a resident in a recognised “post-1898 village” at the time that the village was founded in the New Territories may apply to the Director of Lands once during his lifetime for permission to build for himself a small house on a suitable site on private land or government land (not applicable to post-1898 villagers) in his own village[13]. The beneficiaries of the Small House Policy shall hereinafter be referred to as the “New Territories Indigenous Villagers”. The prevailing Small House Policy now provides for land grant being made by way of:
These land grants are subject to various alienation restrictions, the details of which it is not necessary to set out in this judgment. 10.Between 1972 and 30 June 2018, 10,763 “Private Treaty Grants”, 28,305 “Free Building Licences”, and 3,610 “Exchanges” were made or granted by the Government to eligible New Territories Indigenous Villagers. 11.In passing, I should mention that it is the Government’s position that the New Territories Indigenous Villagers do not have any legal right to build small houses, but they have a right to apply to build small houses under the Small House Policy. It is also the Government’s position that it exercises, and has always exercised, absolute control and discretion to vary the contents of the ever evolving Small House Policy to meet the changing circumstances of the day, including the kind of land that may form the subject matter of an application, the conditions under which an application may be made, the procedures and criteria under which an application may be processed, and the conditions which may be imposed in the case of grant of permission under the Small House Policy[14]. On the other hand, the Kuk takes the position that the New Territories Indigenous Villagers have a right to build small houses in their own villages, and there are some basic features of the Small House Policy protected by BL 40 which cannot be varied or abolished by the Government’s change of policy. Since the subject matter of challenge in this application for judicial review is the Small House Policy, the precise nature of the rights or interests (if any) enjoyed or allegedly enjoyed by the New Territories Indigenous Villagers to build small houses in their own villages is not an issue which arises for determination in this application. I do not therefore propose to consider this matter further in this judgment. For the purpose of disposing of the present application for judicial review, all that I need to focus on are the rights or interests enjoyed by the New Territories Indigenous Villages under the Small House Policy (ie the Ding Rights). I shall, however, have to consider the historical development of land administration in the New Territories preceding the Small House Policy later in his judgment when I come to consider the meaning of the words “traditional rights and interests of the indigenous inhabitants of the New Territories” in BL 40. III. THE PURPOSE OF THE SMALL HOUSE POLICY 12.It is the Government’s evidence that “[t]he purpose of the Small House Policy … was to control the squatter problems and improve temporary domestic structures and their conditions”, and it was introduced “against the background that close to 60% of the buildings in the rural New Territories were of temporary houses or unlawful houses; and that while the rural New Territories had at that time only 10% of Hong Kong’s population, it had nearly 40% of the squatter population”[15]. 13.In a Memorandum for Executive Council titled “Policy With Regard To Small Houses in Rural Areas of the New Territories”, XCR(72)219, dated 31 October 1972 (“the 1972 ExCo Memo”), the following was stated:
14.It can be seen from the 1972 ExCo Memo that the purpose of the Small House Policy was not to preserve or protect any, or any perceived, traditional rights or interests of the male indigenous inhabitants of the New Territories to build small houses, whether within or outside their own villages. In fact, there was no suggestion in the 1972 ExCo Memo that the male indigenous inhabitants of the New Territories had any such rights or interests. The Small House Policy was, instead, a building policy designed to improve the housing standards and conditions in the New Territories. 15.When the legislative proposal to amend the Buildings Ordinance (Applications to the New Territories) Regulations pursuant to the 1972 ExCo Decision was debated in the Legislative Council on 29 November 1972, it was stated by Mr Denis Campbell Bray (District Commissioner, New Territories) that “[t]he regulations are however just the statutory part of the implementation of a major review of policy and practice on the control of small houses, or village houses, as they are known, in the New Territories.” Mr Bray stated that there were several benefits from the new policy, the most important ones of which were:
16.On the same occasion, Mr Bray further stated the following:
17.There was no suggestion in Mr Bray’s speech that the preservation or protection of any, or any perceived, traditional rights or interests of the male indigenous inhabitants of the New Territories to build small houses in their own villages was the benefit or object, or one of the benefits or objects, intended to be achieved by the Small House Policy. Instead, the Small House Policy was said to be an “interim measure” to address the housing conditions and needs of the people living in the New Territories at that time. IV. THE APPLICANTS’ CHALLENGE TO THE SMALL HOUSE POLICY 18.The Applicants’ case in this judicial review is that the Small House Policy is unconstitutional in that:
V. THE SMALL HOUSE POLICY IS PRIMA FACIE UNLAWFUL BY REASON OF ITS DISCRIMINATORY NATURE OR EFFECT 19.BL 25 provides that:
20.BL 39 provides that:
21.As is well known, the International Covenant on Civil and Political Rights is implemented in Hong Kong through the Hong Kong Bill of Rights Ordinance, Cap 383. BOR 22 provides that:
22.On the face of the matter, the Small House Policy gives preferential treatment to the New Territories Indigenous Villagers based on social origin/birth and/or sex and is, prima facie, inconsistent with BL 25 and BOR 22. Neither the Government nor the Kuk has attempted to justify the preferential treatment accorded to the New Territories Indigenous Villagers by reference to the three facets of the justification test (namely, pursuance of a legitimate aim, the measure taken being rationally connected to that aim, and the measure being no more than reasonably necessary to accomplish it) as set out in paragraph 20 of the judgment of the Court of Final Appeal in Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335, or the composite test of whether there is enough of a relevant difference between the two groups of persons to justify the differential treatment as set out in paragraph 58(1) of the judgment of the Court of Final Appeal in Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409. 23.That the Small House Policy would otherwise be an unlawful discriminatory policy unless it was excepted from the operation of the Sex Discrimination Ordinance was fully recognised by the Government. When the relevant exception was debated in the Legislative Council on 28 June 1995, the Secretary for Home Affairs stated: “If the exception provided for the small house policy in Schedule 4 of the Bill were removed, this policy would be rendered illegal in its current form”. 24.In my view, it is clear that the preferential treatment accorded to the New Territories Indigenous Villagers cannot be justified under the justification tests as enunciated in Yau Yuk Lung or Fok Chun Wa. Since neither the Government nor the Kuk has sought to argue otherwise, I do not propose to lengthen this judgment by further consideration of this issue. In the circumstances, it is also unnecessary to consider the fourth step in the proportionality analysis established in Hysan Development Co Ltd v Town Planning Board[17], which is also relevant in the discrimination context[18]. The real question in the present case is whether the Small House Policy is rendered lawful by BL 40. VI. APPROACH TO INTERPRETATION OF THE BASIC LAW 25.The proper approach to the interpretation of the Basic Law is well settled. The following principles are relevant in the present case. 26.First, under the common law approach to the interpretation of the Basic Law which is applied in Hong Kong, the courts’ role is to construe the language used in the text of the Basic Law in order to ascertain the true legislative intent, and this exercise requires the courts to identify the meaning borne by the language when considered in the light of its context and purpose. In Chong Fung Yuen (2001) 4 HKCFAR 211, at 223H-224B, Li CJ stated as follows:
27.Second, in ascertaining the true meaning of the relevant article of the Basic Law, the courts must consider the purpose of the instrument and its relevant provisions as well as the language of its text in the light of the context, context being of particular importance in the interpretation of a constitutional instrument[19]. 28.Third, extrinsic materials which throw light on the context or purpose of the Basic Law or its particular provisions may generally be used as an aid to the interpretation of the Basic Law[20]. 29.Fourth, as submitted by Mr Benjamin Yu, SC for the Government, speeches or views made or expressed by an individual drafter, however prominent or distinguished, cannot be taken to represent the objective legislative intent, given that a multiplicity of individuals played major roles in the drafting process[21]. 30.In the present case, when one considers the materials prepared by the Basic Law Drafting Committee to which extensive references have been made by counsel, it should be borne in mind that the Basic Law Drafting Committee was a working group formed by the National People’s Congress of the People’s Republic of China comprising some 365 members from the Mainland and 23 members from Hong Kong with responsibility to draft the Basic Law. The individual views of a member or some members of the Basis Law Drafting Committee as regards the meaning or effect of an article in the Basic Law plainly cannot be taken to represent the collective views of the maker of the Basic Law, namely, the National People’s Congress. This consideration applies with even greater force to the views expressed by a member or some members of the Basic Law Consultative Committee, which was a body formed to collect and remit the views of its members and of the public to the Basic Law Drafting Committee: see paragraphs 5 to 7 of the Affirmation of Lee Wing-tat, a member of the Basic Law Consultative Committee, and of the Special Group on Inhabitants’ and Other Persons’ Rights, Freedom, Welfare and Duties (“the BLCC Special Group”) formed under the Basic Law Consultative Committee. 31.Fifth, the Basic Law should be read as a whole. An article should be read with and in the light of other articles (especially those addressing the same or similar subject matter) to produce a harmonious and congruous rather than a discordant meaning[22]. 32.Sixth, a general theme of the Basic Law is that of continuity of the social, economic and legal institutions and systems in Hong Kong which existed prior to 1 July 1997[23]. It is important to recognize, however, the limits of this principle. It refers to the continuity of the social, economic and legal institutions and systems, but not necessarily continuity of the “legality” of previous laws, policies or practices. There are many examples where the court holds that laws, policies or practices which were previously lawful, or considered to be lawful, are incompatible with the Basic Law and therefore unconstitutional and unlawful. 33.Seventh, as with the interpretation of statutes generally, the court will presume that the lawmaker did not intend to produce consequences which are unreasonable, objectionable, undesirable or unfair[24]. The more unreasonable, objectionable, undesirable or unfair the result the more unlikely that it is what the lawmaker intended it to be. 34.Eighth, the principle that the general does not detract from the specific is also applicable to the interpretation of a constitution[25]. This having been said, it must still be shown that the case under consideration falls within the “specific” before the “general” is ousted or disapplied. VII. ARTICLE 40 OF THE BASIC LAW 35.BL 40 states as follows:
36.There are, on the face of this article, 4 constituent elements which have to be satisfied before protection is given:
37.When considering the meaning and effect of BL 40, two preliminary points as emphasized by Lord Pannick, QC, for the Kuk may be noted. First, BL 40 is contained in Chapter III of the Basic Law titled “Fundamental Rights and Duties of the Residents”. Second, BL 40 is couched in mandatory terms, “shall be protected”. These underline the importance of the rights and interests intended to be protected by BL 40. These having been said, before protection is given by BL 40, the relevant right or interest must first be shown to properly come within the scope of that article. 38.In relation to the 1st element, “rights and interests (權益)”, as earlier mentioned, there is a difference between the Government and the Kuk as regards the precise rights or interests which may be enjoyed by the New Territories Indigenous Villagers to build small houses in their own villages which it is not necessary to resolve in this case. For the present purpose, I shall focus on the Ding Rights, which I consider can properly be regarded as “rights or interests” capable of being protected by BL 40. 39.The 4th element, “indigenous inhabitants of the New Territories (新界原居民)”, is not, I consider, controversial in the present case. Those who are qualified to benefit under the Small House Policy can clearly be regarded as falling within the expression “indigenous inhabitants of the New Territories” in BL 40. 40.The real issues in the present case are whether the Ding Rights can satisfy the “traditional (傳統)” and “lawful (合法)” elements in BL 40. VIII. THE PARTIES’ RESPECTIVE CONTENTIONS 41.There is a difference of views between the Government and the Kuk in relation to the meaning or effect of the words “traditional” and “lawful” in BL 40. The Government’s position is that:
42.On the other hand, the Kuk’s position is that:
43.In so far as the Applicants are concerned:
44.There is, so far as I am aware, no binding or conclusive authority on whether the Ding Rights are protected by BL 40. In Tse Kwan Sang v Pat Heung Rural Committee [1999] 3 HKLRD 267, which concerned, inter alia, the question of whether the right to vote or stand as a candidate in a village representative election was a traditional right protected by BL 40, Cheung J (as he then was), when discussing the scope of BL 40, referred to a report produced by a Government Working Group on the New Territories Ordinance in April 1988 which apparently stated or confirmed that “the customary rights of the indigenous villagers relate to specific personal and property rights only. These are the right of a man to build a small house under the small house policy, funeral and burial rights, exemption from rates and symbolic payment of rental for village lots”[34]. It is clear that the learned judge was there merely reciting the contents of the Government Working Group report, not stating his own views. In any event, there was no analysis of whether the alleged right of “a man to build a small house under the small house policy” should be regarded as forming part of the “traditional rights and interests” of the New Territories indigenous inhabitants within the meaning of BL 40, although it is right to point out that there was no expression of dissent of that view by the judge. 45.In Secretary for Justice v Chan Wah (2000) 3 HKCFAR 459, also a case concerning a constitutional challenge to the electoral arrangements for the position of village representative which excluded the applicants from voting or standing as a candidate on the ground that they were not “indigenous villagers” (used in the sense as in the Government Rent (Assessment and Collection) Ordinance), Li CJ expressed the following view at 477D-F:
46.It would appear that the Chief Justice considered, or did not question the proposition, that benefits relating to land granted to male indigenous inhabitants of the New Territories under the Small House Policy formed part of the “lawful traditional rights and interests” of the New Territories indigenous inhabitants in BL 40, and were protected by that article. However, as pointed out by Lam J (as he then was) in Koon Ping Leung v Director of Lands [2012] 2 HKC 329, at paragraphs 24 to 25 and 29, the Chief Justice’s statement in respect of “the benefit under the small house policy” was obiter, or “a mere passing remark as to the position adopted by the parties in that case where the focus was on some other issues”, and thus not binding as a matter of law. At paragraphs 26 and 27 of his judgment, Lam J also stated the following:
47.The same view regarding the status or effect of the Chief Justice’s observation in Chan Wah was taken by Deputy High Court Judge Marlene Ng (as she then was) in Secretary for Justice v Liu Wing Kwong [2014] 2 HKLRD 155, at paragraph 63 to 63, who expressly agreed with the analysis of Lam J. That case related to the scope of the exemption from assessment to rates in respect of eligible buildings inside the Designated Village Areas in the New Territories under Section 36(1)(c) of the Rating Ordinance, Cap 116. At paragraph 64 of her judgment, the learned judge stated the following:
48.When the Liu Wing Kwong case reached the Court of Appeal in CACV 160/2013 (4 March 2016), Au J (as he then was, and with whom Kwan JA and Chu JA agreed) also expressed the view that the Chief Justice’s observation in Chan Wah was obiter and not binding as a matter of law. At paragraph 37 of the judgment of the Court of Appeal, the following was stated:
49.In the circumstances, in the absence of any definitive or binding authority on whether the Ding Rights should be regarded as forming part of the “lawful traditional rights and interests of the indigenous inhabitants of the New Territories” within the meaning of BL 40, I consider that I am entitled, and indeed bound, to consider this matter afresh. X. THE “TRADITIONAL” (傳統) ELEMENT IN BL 40 (i) The meaning of “traditional” (傳統) 50.There is no definition, or further explanation, of the expression “traditional” (傳統) in the Basic Law. Its meaning should be ascertained by following the approach to the interpretation of the Basic Law as set out in Section VI above. In particular, one should have regard to the context and purpose of BL 40 in order to ascertain the legislative intent of BL 40, or identify the meaning of the expression “traditional” (傳統) as used in BL 40. Extrinsic materials, including materials relating to the drafting process of the Basic Law, are admissible and relevant to ascertain the context and purpose of BL 40, but the individual views of the drafters of the Basic Law are not helpful for the purpose of determining the meaning or effect of BL 40. 51.At the hearing of this application for judicial review, the parties referred the court to a large volume of “drafting materials” in relation to BL 40, including reports and compilation of views prepared by the Basic Law Drafting Committee and the Basic Law Consultative Committee. It is not necessary to examine them in detail in this judgment. The effect of the drafting materials can, I believe, be summarised as follows:
52.A seminar was organized by the BLCC Special Group and the Secretariat of the Basic Law Consultative Committee on 6 September 1986 to ascertain the views of the New Territories indigenous inhabitants regarding their rights and interests. At that seminar, the Kuk and Rural Committees were invited to make submissions, and Mr Lau Wong-fat (former Chairman of the Kuk) made submissions on behalf of the New Territories indigenous inhabitants. A report collating the submissions made and the views expressed at the seminar (“the Seminar Report”) was subsequently prepared and submitted to the BLCC Special Group for consideration at its 10th meeting held on 16 January 1987. It was agreed at that meeting that the rights and interests of the New Territories indigenous inhabitants should be written in the Basic Law, and that the Seminar Report should be submitted to the Basic Law Drafting Committee for consideration. In the 1st part of the Seminar Report, a total of 8 items of existing rights or interests of the New Territories indigenous inhabitants were set out, including: (1) the status of the Kuk and its members, (2) the right of the New Territories indigenous inhabitants once in their lifetime to build a small house (3-storeyed) with an area not exceeding 700 square feet and its height not exceeding 25 feet, (3) rates exemption for village houses in the New Territories, (4) ex-gratia compensation for the New Territories indigenous inhabitants’ villages in face of removal, (5) the New Territories indigenous inhabitants’ land leases and other rights relating to land, (6) burial rights of the New Territories indigenous inhabitants, (7) preservation of custom and cultural relics (as further specified), and (8) the New Territories indigenous inhabitants’ right to inherit legacy (in particular, the inheritance right belongs to the male members of a family in the absence of a will, and properties held under the names of a tong or tso are to be managed by a manager). It may be noted that some of the rights mentioned in the Seminar Report, eg the status of the Kuk and its members, could not have formed part of the traditional rights or interests of the New Territories indigenous inhabitants under BL 40, because, as pointed out by Cheung J in Tse Kwan Sang[37], the Kuk was only established in 1926, which was almost 30 years after the British occupation of the New Territories, and the right to participate in the affairs of the Kuk was not available to the indigenous population in 1898. 53.The “context” of BL 40 is, I consider, that at the time of the drafting of the Basic Law, it was generally thought or believed that (i) there were some existing rights or interests which were enjoyed by the New Territories indigenous inhabitants only but not by the rest of the general public in Hong Kong, (ii) such rights or interests were not or might not have been prescribed by law but were based on traditional or customary practices or conventions in the New Territories over the centuries, and (iii) such practices or conventions were in practice at the time of the New Territories Lease in 1898 and were still being practised at the time of the drafting of the Basic Law. Indeed, it was for these reasons that article 40 (or its predecessor) in the earlier draft versions of the Basic Law, which referred to “新界原居民的合法權益” (the lawful rights and interests of the New Territories indigenous inhabitants), was later changed to “新界原居民的合法傳統權益” (the lawful traditional rights and interests of the New Territories indigenous inhabitants):
54.In so far as the “purpose” of BL 40 is concerned, I consider it to be clear that its purpose is to protect those existing rights and interests enjoyed by the New Territories indigenous inhabitants which may properly be regarded as their “traditional rights and interests” after 1 July 1997 in accordance with the theme of continuity of the Basic Law. 55.Having regard to the context and purpose of BL 40, I agree with the Government’s submission that the “traditional” rights and interests of the New Territories indigenous inhabitants which are protected by that article are confined to those traceable to the rights and interests of the New Territories indigenous inhabitants before the commencement of the New Territories Lease in 1898. The traditional rights and interests of the New Territories indigenous inhabitants do not, in my view, include those practices which only came into being after the British took the New Territories Lease in 1898 unless they are traceable to their previous rights and interests. This view is supported by:
56.The mere fact that the members, or some members, of the Basic Law Drafting Committee or Basic Law Consultative Committee thought or believed that the Ding Rights were part of the traditional rights or interests of the New Territories indigenous inhabitants is not sufficient to make them “traditional” rights or interests for the purpose of BL 40. The words “傳統 (traditional)” were used in the Basic Law for particular reasons (see paragraph 53 above). They cannot be treated as meaning simply what the members, or some members, of the Basic Law Drafting Committee or Basic Law Consultative Committee thought or believed them to mean. In my view, it must be shown that the Ding Rights are, as a matter of fact, “traditional” rights or interests of the New Territories indigenous inhabitants in the sense mentioned above before they are protected by BL 40. 57.Mr Yu argues that the question of whether the rights and interests of the New Territories indigenous inhabitants under the Small House Policy can be said to be “traditional” within the meaning of BL 40 is not the same question as whether the Small House Policy came into being in order to protect the rights and interests of the New Territories indigenous inhabitants[38]. It seems to me that while the latter question is not conclusive, it is not irrelevant either. If the Small House Policy (or previous corresponding policies) can be shown to have come into being for the purpose of protecting, or in recognition of, some traditional rights or interests of the New Territories indigenous inhabitants, it is more likely that the rights or interests enjoyed by the beneficiaries under the Small House Policy could be regarded as being traceable to those traditional rights or interests of the New Territories indigenous inhabitants. The converse situation, I believe, also holds true. 58.There is one other matter that I should mention here. In a document titled “A compilation of the views of visiting Mainland drafters on some questions concerning the draft Basic Law for solicitation of opinions” during the period from 4 to 7 June 1988 (the “Compilation”) prepared by the Secretariat of the Basic Law Consultative Committee, it was said that during the Sino-British negotiations on the land question, it had been agreed that the rights of the indigenous inhabitants of the New Territories would be protected, and they included the right of male descendants to build small houses and a promise not to increase their land rent[39]. There is, however, no evidence before the court on the alleged agreement during the Sino-British negotiations. On the contrary, while the issue of rent was dealt with in paragraph 2 of Annex III (Land Leases) to the Joint Declaration[40], there is no express provision anywhere in the Joint Declaration or the Annexes thereto conferring protection of any right of male descendants of the New Territories indigenous inhabitants to build small houses. In my view, the Joint Declaration and its various Annexes should be regarded as being the authentic documents embodying the agreement reached by the PRC Government and the British Government, and the PRC’s basic policies regarding Hong Kong. I also note that in the Compilation, it is stated that the views as expressed “are merely explanations and interpretations given by individual drafters and do not represent the view of the Drafting Committee as a whole”, and that the paper “has not been read by the drafters concerned and the Secretariat will be responsible for any discrepancy”. In the circumstances, I am not prepared to proceed on the basis that there was an agreement reached during the Sino-British negotiations that the right of male descendants of the New Territories indigenous inhabitants to build small houses would be protected. 59.In order to determine whether the Ding Rights are “traditional” rights or interests of the New Territories indigenous inhabitants within the meaning of BL 40, it is now necessary to briefly examine the history of land holding and land administration in the New Territories starting from the time immediately before the New Territories were leased to the Crown in 1898. (ii) Land tenure before the New Territories Lease 60.The system of land holding prevailing in the New Territories prior to the New Territories Lease of 1898 was the subject of expert opinion given by Professor Anthony Dicks, QC, a well-known expert in this jurisdiction on Chinese law and custom as practiced in the New Territories, in Winfat Enterprises (HK) Co Ltd v Attorney General [1983] HKLR 211. At p 216, Kempster J (as he then was) recited paragraphs 7 to 11 of Professor Dicks’ affidavit as follows:
61.The nature of “common tenure” was succinctly summarized by Lord Diplock when the Winfat Enterprise case reached the Judicial Committee of the Pricy Council [1985] 1 AC 733, at 744H, as follows:
62.Dr Hase, the Government’s expert on land custom and practices in the New Territories, disagrees with Professor Dicks’ opinion that land in the New Territories was, by and large, held on “common tenure” prior to 1898. According to him, the formal system of land holding upon “common tenure” under the “Qing Code (大清律例)” was in fact “very rare” or “uncommon” in the New Territories[41]. Instead, land was held upon “customary tenure” based on custom or traditions. Dr Hase’s evidence, in summary, is as follows:
63.It is not in dispute that the Subsoil-Topsoil land holding system as described by Dr Hase was likely to be contrary to the Qing Code, since it was impermissible under the code to occupy or cultivate land without taking out a lease from the Imperial authorities and paying land tax thereon[42]. 64.Professor Cheung, the Applicants’ expert on Chinese law and custom, considers that the Subsoil-Topsoil land holding system was not “law” in the strict sense, and had no legal status in the Qing Dynasty. No Qing Dynasty local official would act openly against the Imperial Qing Code or say that there was another land system which operated in parallel to the Qing Code. Any county magistrate who overlooked or turned a blind eye to any practice violating the Qing Code would, or could, be impeached and punished by his superiors. Anyone who occupied land without paying land tax would be subject to a heavy penalty. The Subsoil-Topsoil land holding system was merely a customary practice which, like tax evasion, the Qing officials understood was in existence. The Qing officials might accept some customary practices but only so long as they did not violate the system of laws promulgated under the Qing Code. 65.Professor Cheung agrees with Dr Hase that there was no specific law relating to building structures on privately-owned land under the Qing Code. The Qing government was concerned primarily with land on which they could levy and collect tax. By the Qing Code, a land owner did not need to seek consent from the local officials or any other persons for developing, or building on, his/her land[43]. Professor Cheung disagrees with Dr Hase’s opinion that houses could only be built in the village areas of the New Territories with the consent of the village communities. He stresses that the role played by the so-called village communities was never permitted or acknowledged by the Qing Code[44]. Professor Cheung also says that women could own land and houses in the Qing Dynasty, and were allowed to do so under the Qing Code[45]. 66.In my view, whatever may be said about the formal, or strict, legal status of the Subsoil-Topsoil land holding system as described by Dr Hase, it existence in fact cannot be denied[46]. It existed alongside the “common tenure” system under the Qing Code and was practised by the village communities in the New Territories for many years prior to 1898. This much is not, I believe, disputed by Professor Cheung[47]. (iii) The New Territories Lease of 1898 and the Proclamations 67.In the Qing Dynasty, the New Territories were under the jurisdiction of San On (新安) County of the Guangdong Province. It had a population of about 90,000 immediately before the New Territories Lease in 1898. 68.On 9 June 1898, the respective Governments of the Great Britain and (Qing) China signed what is commonly known as the “Second Peking Convention” or the “New Territories Lease”, under which the territories north of what is now called Boundary Street and south of Sham Chun River, and the surrounding islands, with a total area of some 356 square miles, were leased to the Crown for a term of 99 years from 1 July 1898 to 30 June 1997. 69.Although the New Territories Lease was to commence on 1 July 1898, it was not until April 1899 that the British actually took over the New Territories, apparently because of some resistance from discontented fractions in and out of the New Territories, which the British had to put down before taking over the area. 70.Shortly afterwards, the then Governor of Hong Kong, Sir Henry Blake, issued a number of proclamations or public statements, including the following:
71.It is well established that these proclamations or public statements do not have the force of law[48]. Nevertheless, it would seem to be clear that the intention of the Government at that time was to respect the existing customs and usages in the New Territories subject to the general laws applicable to the rest of Hong Kong. Further, it is clear that the Government had decided in the early days to prepare a comprehensive register of land ownership in the New Territories and carry out a comprehensive land survey of the New Territories which, as will be seen below, paved the way for a fundamental change of the system of land holding in the New Territories. (iv) Change of land holding from common/customary tenure to Crown lease 72.Soon after the British actually took over the New Territories in April 1899, the Government took steps to divide the New Territories into 8 districts and 48 sub-districts, and appointed “Committee-men”, made up of village elders, to co-operate with the Government in regulating the local affairs of the villages, and in forming a link between the Government and the villagers. The Land Office (with branches at Taipo and Ping-shan) was also set up to secure the registration of the owners of cultivated land in the New Territories with a view to preparing a Crown Rent Roll. 73.As earlier mentioned, the Government also decided to undertake a survey of the land in the whole of the New Territories to map and record lot boundaries, areas and land use for the purpose of land administration, including the assessment of revenue chargeable as Crown rent according to whether the land was classed as agricultural (and what class) or building land. The actual survey was carried out by surveyors from India. A total of some 563 cadastral maps were prepared showing the position and area of individual holdings of land in the New Territories. The survey began in November 1899, and was mostly completed by May 1903. Details compiled in the survey were collated into schedules to which were attached the relevant Demarcation District survey sheets. These formed the Schedules to the Block Crown Leases (see below). 74.In accordance with the procedures mentioned in the Proclamation issued on 12 July 1899, an Assistant Land Officer would issue a notice to the villages in a sub-district, informing the inhabitants that their land claims had to be sent in by a certain date. The landlords and tenants were required to bring their title deeds to the Land Office for the purpose of registration. There were in existence two types of title deeds, namely, (i) “red deeds” (紅契), being officially stamped deeds which had been registered and stamped by the Chinese Magistrate of San On District, and (ii) “white deed” (白契), which were not officially stamped and which were records of private sales only. The last deed before the date of the Second Peking Convention was generally taken as the root of title for the purpose of registration, unless circumstances required the production of earlier deeds. In many cases, title deeds had been lost or destroyed, and the claimants were required to produce secondary evidence of ownership of the land, such as rent roll and receipts from the Chinese Imperial Government for land tax, and other particulars which might be pertinent to the land in question. The claimants were also required to report the nature and area of the land, whether cultivated, fertile or otherwise, the kind and number of crops it produced, the rent paid, etc, to help the Land Office classify the land. Such information was also intended to be used to determine the Crown rent to be charged. 75.During the registration process, the Land Office encountered a lot of problems and disputes which it is not necessary to set out in this judgment. Within a short period of time, it was decided that the claims collected by the system described above were insufficient for any purpose other than preparing a temporary Crown Rent Roll[49]. It was also decided that such problems and disputes should be resolved by a special court, namely, the Land Court, to be set up. 76.In 1900, three New Territories (Land Court) Ordinances (Nos 4, 8 and 18 of 1900) were enacted to facilitate the hearing, determination and settlement of land claims in the New Territories. The following provisions of Ordinance No 18 of 1900 may be noted:
77.The Land Court was formally constituted on 1 June 1900, with Mr Pollock as President and Mr Gompertz as Member, and the first sitting of that court took place on 20 February 1901. The general procedure adopted by the Land Court was, in summary, as follows. A district would be chosen and marked out by boundaries, and a notification would then be issued calling upon all land owners to present their claims to the Land Court before a given date. All lands claimed were surveyed and particulars of ownership entered in the demarcation books, while claimants were summoned to attend the court. After the last day for presenting claims, all lands unclaimed in the district would be treated as the property of the Crown. The claims themselves were sorted, undisputed ones being available for the Rent Roll, while those which were contested would be set down for hearing and resolved by the court. The determination and settlement of the land claims for the whole of the New Territories was carried out and completed by the Land Court by around 1905. Most of the disputes determined by the Land Court were disputes between the Topsoil land-owner and Subsoil land-owner. By and large, the Land Court found in favour of the Topsoil land-owner unless the Subsoil land-owner was able to produce a title document and show that he was actually paying land tax to the Imperial authorities prior to the New Territories Lease of 1898. 78.As decided by the Land Court, the New Territories were divided into 477 Demarcation Districts, which were then divided into Blocks, with a Block Crown Lease being issued for each Block. A total of some 340 Block Crown Leases were eventually issued. Each Block Crown Lease contained a Schedule detailing the separate ownership of the land, the lot number allocated to each piece of land, the user to which the land was put at the date of the survey (eg “agricultural”, “building”, “padi”, “dry cultivation”, “lime kiln”, “threshing floor”, “ruin”, etc) and the amount of Crown rent payable for that lot. A total of some 354,277 lots were listed in the Schedules to the Block Crown Leases in this manner. These lots are now commonly referred to as “Old Schedule lots”, while lands in the New Territories sold after 1901 are referred to as “New Grant lots”, and the corresponding grants as “New Grants”. Unclaimed land was treated as being vested in the Crown. 79.The net effect of all these was that the previous perpetual interests of the land owners in the New Territories held upon common or customary tenure were abolished and replaced by a fundamentally different system of land ownership under which land was regarded as being held upon a lease from the Crown for a limited term subject to various covenants the nature and effect of which were governed by common law as modified by locally enacted Ordinances. As stated by Lord Diplock in Winfat Enterprise, at p 745A-C:
80.For the sake of completeness, I should mention that in 1910, the New Territories Ordinance was enacted which consolidated and amended the laws relating to the administration and regulation of the New Territories. Section 8 of the current version of the New Territories Ordinance, Cap 97, repeats in essence the declaration contained in Section 15 of the New Territories (Land Court) Ordinance mentioned above, and states as follows:
(v) Land sale in village areas in the New Territories prior to 1972 81.According to the joint opinion of Mr Davison and Dr Hase, in the period after 1898, where the Government wished to sell land for development in the New Territories, ie where the Government itself initiated the sale (as in the Market Towns and other development areas before the Pacific War, and in the New Town areas and other development areas after the war), a general invitation to bid at open auction for the land would be issued in the Government Gazette and in the District Office, and the sale of the land would be at the full market price to the highest bidder. No restrictions of any kind as to the sex or indigeneity of the bidders was in place[50]. These disposals of land are not relevant for the purpose of this case. Also not relevant for the present purpose are cases where land outside village areas in the New Territories was sold by auction upon the initiative of applicants, mainly city merchants, to be used for building “villas” or “luxury country houses”. Again, there was no restriction as to sex or indigeneity of the bidders[51]. What is relevant to the present case are situations where land in a village area in the New Territories was sold following an initiative by an applicant, and these will be the focus of the following discussion. 82.Sale by public auction: as earlier mentioned, unclaimed land in the New Territories after completion of the Block Crown Lease exercise was treated as Crown land and became available for alienation by the Government by way of public auction. The land was sold under standard conditions of sale which were in use up to the Second World War. Before any land was put up for sale by auction after a request had been made by an applicant, the District Officer would first check that there were no Government objections to the sale of the land in question (eg, incompatibility with public works such as a projected road or a water pipeline), after which he would give public notice of the proposed sale on the village notice board and the District Office notice board. The District Officer would also discuss the proposed sale with the village elders to check that there were no valid objections on the grounds of damage to the village fung shui, access footpaths, watercourses, etc. The District Officer would generally not act against the objections of the village elders. If no valid objections were raised, the District Officer would then proceed with the sale of the land by auction. 83.The Government has been able to locate primary documents relating to New Grant lots sold by public auction dating back to 1904. Dr Hase states that the first sale of Crown land for building houses in the New Territories took place in November 1904[52]. 84.I note that (i) in a Memorandum for Executive Council on “Land Conversion in the New Territories”, XCC 27, dated 2 April 1957 (“the 1957 ExCo Memo”), “New Grant lots” were referred to as “lots sold in the New Territories since 1901”, and (ii) in another Memorandum for Executive Council also on “Land Conversion in the New Territories”, XCR 237, dated 24 June 1960 (“the 1960 ExCo Memo”), it was stated that “[s]ince 1902 villagers in the New Territories have acquired certain Crown land in the form of New Grant lots near their village for agricultural purposes”. It does not matter much, in my view, whether the first sale actually took place in 1904 or earlier in 1901/1902, although I believe the former to be the more likely scenario because such sale probably could only take place after the completion of the land survey in the New Territories in 1903/1904. 85.According to Dr Hase, the upset price at these auctions since around September 1905 until the Japanese War, at $1 per 100 sq ft (except where the chance of development was higher), was a concessionary one and was undoubtedly a political move. He also says that the low price was “probably” due to the posting of an Assistant Land Officer to the New Territories in January 1905:
86.Mr Davison considers Dr Hase’s statement above (up to “only a low rate would be acceptable”) to be speculative[55]. There does not appear to be any objective or contemporaneous evidence to support Dr Hase’s evidence. I am not prepared to accept that part of Dr Hase’s evidence objected to or disputed by Mr Davison. In any event, even if one were to accept his evidence, it would appear that the sale of house lots in the New Territories at a concessionary rate at that time was motivated by a mixture of reasons. Although one of the reasons could be the villagers’ belief that they previously (pre-1898) had the right to build houses on Imperial land which they already owned, it was an entirely different matter whether they were entitled to, or should, be granted Crown land to build new houses, whether at a concessionary rate or otherwise. 87.Sale by private treaty: on 26 November 1908, Mr Wakeman (Land Officer) wrote to Sir F D Lugard (Governor of Hong Kong) recommending that the sanction of the Secretary of State for the Colonies be sought for a proposal that land in village areas in the New Territories be sold by way of private treaty instead of public auction:
88.It can be seen that the reasons put forward by Mr Wakeman for the proposal that land in the New Territories be disposed of by private treaty instead of public auction were that:
89.On 4 December 1908, Sir F D Lugard submitted the abovementioned proposal to Lord Crewe (Secretary of State for the Colonies). On 22 January 1909, Lord Crewe replied, stating that he had no objection to the proposal that Crown land in the undeveloped parts of the New Territories could be sold by private treaty on condition that in each case of such sale, the Land Officer should certify that to the best of his knowledge there was no probability of any competition at the sale and the applicant was the only person interested, and provided further that:
90.From 1909 to a few years after the Second World War, sale by way of private treaty was one of the methods used by the Government to dispose of land in village areas in the New Territories. 91.Three further points are of note in relation to this method of disposal of land in the New Territories:
92.Sale by restricted village auction: the practice of selling Crown land in village areas in the New Territories by way of private treaty ceased a few years after the Second World War, and open auctions were re-introduced. Soon afterwards, however, a practice referred to as “restricted village auction” or “closed village auction” came to be developed which had the effect of turning the auctions, “open” in theory, into “restricted” or “closed” ones. As stated in paragraph 37 of Chow Man Yee’s 2nd Affirmation:
93.The District Officers’ purported justification for auction to be “cook[ed] … in this most blatant manner”[58] can be found in two memoranda from the District Commissioner, NT, one to the Colonial Secretary dated 6 October 1960, and the other to the Director of Audit dated 7 October 1969. 94.In the first memorandum, the District Commissioner, NT stated as follows:
95.In the second memorandum, the District Commissioner, NT stated as follows:
96.Again, it can be seen that restricted village auction was permitted not because the Government recognised or accepted that the New Territories indigenous inhabitants had any traditional right to build small houses in their villages, or acquire land to build small houses in their villages, whether at a concessionary premium or otherwise. It was, instead, a device adopted by the District Officers to avoid practical difficulties arising from outsiders intruding into the community of a village. 97.On 11 October 1960, the Colonial Secretary gave formal approval of the proposal to dispense with gazette-notification of sales of village-type house lots where the upset price did not exceed $5,000 as proposed by the District Commissioner, NT in his first memorandum mentioned above. 98.Restricted village auction was common in the 1960s. However, it was obviously an unsatisfactory practice, and was described in paragraph 6 of the 1972 ExCo Memo as a “major anomaly”. In paragraph 7 of that Memo, it was proposed that restricted village auction be abolished and replaced by private treaty grant. 99.In respect of these 3 methods for the disposal of land in village areas in the New Territories, ie sale by public auction, private treaty and restricted village auction, although there was no express written rule which excluded female indigenous villagers or outsiders from acquiring land, in practice only male indigenous villagers could take part because the District Officer would generally not give his consent to the sale of any land which was objected to by the village elders, and usually the village elders would object to a sale of land to a female indigenous villager or an outsider, although there were exceptional cases where land was sold to female indigenous villagers who purchased the land to build houses for their infant sons, and also to non-indigenous men who (or whose fathers) had been living in the village in question before the Japanese War[59]. 100.Block Crown Leases were generally granted for a term of 75 years (from 1 July 1898) plus an option to extend for a further term of 24 years less 3 days. They contained, inter alia, the following two covenants:
101.For many years prior to the decision of the Court of Appeal in AG v Melhado Investment Ltd [1983] HKLR 327, there were doubts or conflicting views on whether the permitted user under a Block Crown Lease was limited by the use of the land as described in the Schedule to the Block Crown Lease. In that case, the Court of Appeal held that the use of the land referred to in the Schedule was not a restrictive user provision but merely descriptive of the actual historical use at the time of the original survey, and thus land which was described as “padi”, “waste”, “grave” and “dry cultivation” in the relevant Schedule to the Block Crown Lease could lawfully be used for the purpose of storage of steel girders without any breach of covenant. This point should be borne in mind when one reads some of the historical documents mentioned below referring to the “conversion” of agricultural land into building land. 102.Due to the existence of the Two Covenants in the Block Crown Lease, any construction of a house on an Old Schedule lot would require the approval of, and the issue of a building licence by, the Government. A villagers wishing to build a house on an Old Schedule lot therefore had, in the first instance, to apply to the District Office for approval. The District Officer had the right to refuse to give his approval, and would do so if, for instance, construction of a house on the land in question would compromise a proposed future road or Government project. If the District Officer considered that the application could proceed, the same public notice requirements as for the sale of Crown land by auction mentioned above would be followed, and discussion with the village elders would take place to ascertain whether there were any valid objections to the application on fung shui or other grounds. If no objections were received, the District Officer would give his approval, which was spelt out in a building licence, stipulating the size and structural details of the building that could be constructed. 103.The Government’s policy of granting free building licences (ie at nil premium) to villagers to permit them to build village type houses on Old Schedule agricultural lots started in about 1906. The justification for this policy can be found in a minute contained in CSO No 807/06 prepared by Mr Cecil Clementi (Member of Land Court appointed in 1903 who later became Governor of Hong Kong between 1925 and 1930) to the Colonial Secretary dated 11 January 1906:
104.There were views within the Government contrary to Mr Clementi’s view that the villagers were entitled, or had the right, to build houses on their “padi” land. In particular, both the Crown Solicitor and Attorney General considered that the villagers had no such right, although the Governor had a discretion to grant a licence to permit “conversion” of agricultural land into building land. Apparently, their views were endorsed by the Colonial Secretary, and the Colonial Secretary’s view or advice was accepted by the Governor[60]. 105.On 9 March 1906, the Governor announced, by Gazette Notice No 191/1906, that Assistant Land Officers were authorized until further notice to “grant licences for and on behalf of His said Majesty for the conversion of any ground in the New Territories expressed in the Crown Leases thereof to be demised as agricultural or garden ground into use for building purposes”. By another Gazette Notice No 192/1906 also dated 9 March 1906, the Governor further authorized Assistant Land Officers to “approve buildings on land in the New Territories (exclusive of New Kowloon) held under lease from the Crown”. 106.An increased Crown rent was payable upon the issue of a free building licence permitting a villager to build a village type house on an Old Schedule agricultural lot. On the other hand, conversion of a New Grant agricultural lot by way of building licence was originally subject to the payment of a premium[61]. 107.The Government’s policy concerning conversion of agricultural land into building land in the New Territories to enable villagers to build village type houses varied considerably at different times after 1906. There was also some confusion or uncertainty on whether non-villagers who came to own Old Schedule lots (eg by purchase) were entitled to benefit from the free building licence policy. The Government lawyers were firm that the policy since 1906 was open to all owners of Old Schedule lots, because the Governor’s authorisation by Gazette Notices No 191 and 192/1906 did not restrict free conversion to villagers only. 108.However, most of the District Officers acted contrary to the Government lawyers’ view and proceeded on the basis that the 1906 policy was intended to be a concession available only to the villagers and their successors in title by descent, and refused to allow conversion to outsiders (whether by way of a free building licence, or even if payment of a premium was offered). The Government lawyers’ view was confirmed in CSO 4 in 1289/23[62], where it was stated that if the District Officer decided that conversion was to be allowed:
Nevertheless, it appears that some District Officers continued to act in defiance of the ruling of the Colonial Secretary’s Office[63]. 109.On 9 April 1957, the Governor in Council approved a standard policy on the terms of conversion put forward in the 1957 ExCo Memo, as follows:
110.The distinction drawn between Old Schedule lots and New Grant lots was explained on the basis of a need to “honour … undertakings towards the country people”. In a note prepared by the District Commissioner, New Territories which was enclosed with the 1957 ExCo Memo, it was stated in paragraph 2 thereof that:
111.In another Memorandum for Executive Council on “Village Houses in the New Territories”, XCR(67)62, dated 17 February 1967 (“the 1967 ExCo Memo”), it was stated in the first paragraph thereof that:
112.In June 1960, in order to cope with village expansion, the policy of charging no premium for conversion was extended to pre-war New Grant lots. There were some further changes to the details of the policy relating to the grant of free building licence, notably in 1967 in respect of the roofed-over area and the height of the house which could be erected. The free building licence policy (as modified from time to time) remained in force as at the date of the implementation of the Small House Policy in 1972. 113.It is not, I understand, to be in dispute that before the War and for several decades after the War, consent to applications by villagers for free building licences were, in practice, restricted by the District Officer to male villagers applying to build village houses for their own use or the use of their families within their own village area, where the applications were not objected to by the village communities[64]. 114.It is also the agreed evidence of Mr Davison and Dr Hase that:
(vii) Private Treaty Grant and Exchange are not “traditional” (傳統)rights or interests of the New Territories indigenous inhabitants 115.As earlier mentioned, I am of the view that in order to qualify as a traditional right or interest of the New Territories indigenous inhabitants for the purpose of BL 40, it has to be shown that the right or interest in question is traceable to the rights or interests of the New Territories indigenous inhabitants before the commencement of the New Territories Lease in 1898. It should be borne in mind that the word “traceable” does not appear in the Basic Law, and is used only for the purpose of elucidating the concept of “traditional” as used in BL 40. Subject to this caveat, I consider that a right or interest can, for the present purpose, properly be regarded as “traceable” if it captures or reproduces the essential feature(s) of a right or interest that was enjoyed by the New Territories indigenous inhabitants before the commencement of the New Territories Lease. 116.I consider that the Ding Rights in the form of Free Building Licence can properly be regarded as a traceable right in this sense. It would appear from the evidence before the court that this form of land grant by the Government, which started in about 1906, was made on the understanding that prior to the New Territories Lease, the villagers in the New Territories were entitled to build houses on their land without having to seek the approval of, or make any payment to, the Imperial authorities or the Subsoil land-owner, although they would have to seek the consent of the village elders before building the houses. While it is true that the details of the Free Building Licence granted by the Government have changed or evolved over time, and various restrictions in respect of, for example, the type and size of the house, location, and alienation of the house, were imposed by the Government, these matters do not, I consider, detract from, or change or affect, the original basis on which free conversion of agricultural land into building land was permitted by the Government. 117.The same cannot be said, however, of Private Treaty Grant. Prior to the New Territories Lease in 1898, the villagers in the New Territories did not have any right as such to acquire land for the purpose of building houses, whether at a concessionary rent or land tax, or otherwise. It is clear on the evidence that the New Grants made by the Government to the villagers since about 1904, whether by public auction, private treaty, or closed village auction, were not in recognition of any right of the villagers to build houses in their villages, or based on any understanding that the villagers had any such right (see the discussion in paragraphs 81 to 99 above under the sub-heading “Land sale in village areas in the New Territories prior to 1972”). The contrary view expressed by Dr Hase[67] is rejected. Land was sold by the Government to the villagers to address their housing needs, but that would be nothing more than ordinary land administration by a government. 118.On behalf of the Government, Mr Yu argues that:
119.I am unable to accept the submission that Private Treaty Grant can be regarded as being traceable to the “right” of the New Territories indigenous inhabitants prior to 1898 to apply to their village communities (or elders) for land to build houses. The sort of approval or consent given by the village communities (or elders) to build houses is fundamentally different in nature from a land grant made by the Government, whether pursuant to a public auction, private treaty or restricted village auction. The village communities (or elders) would be acting in accordance with village custom or traditions to manage village affairs, whereas the Government would be disposing of Crown land by lease for a premium and annual rent while imposing various restrictions on the holding and use of the land by covenants. Moreover, there is no support for the proposition that the Government made such land grant to the New Territories indigenous inhabitants in recognition of, or on the understanding, that they previously had a right to apply to the village communities (or elders) for land for the purpose of building houses. In so far as it is suggested that the New Territories indigenous inhabitants could apply to the District Magistrate for land to build houses, that can hardly be described as a “right”, or any “right” of the male indigenous inhabitants of the New Territories. The evidence before the court suggests that anyone who had the means could “apply” to the Imperial authorities for land, whether that person was a male or female[72], and whether he/she was a villager or an “outsider”[73]. In any event, the application would be for land simpliciter, it being common ground that under the Qing Code, no permission to build houses on privately-owned land was required to be obtained from the Imperial authorities[74]. 120.Mr Yu further argues that “the concessionary price at which the lands were sold is key: it showed that the aim was to put NTIIs without land on the same footing as NTIIs who did so that the former group could build houses for their own occupation without having to pay any premium”[75]. The basis of this argument is, apparently, the following statement in the paragraph 8(c) of the 1972 ExCo Memorandum:
121.In my view, while the premium set at two-third of the full market rate might, in 1972, have been at a level “consistent” with the value of the Free Building Licence granted to the villagers to build a small house on his own agricultural land, there is no support for the view that the concessionary rate at which land was sold to the villagers in the early days since 1904, whether by way of public auction, private treaty grant or restricted village auction, had any relation to the Government’s practice or policy of granting free building licence to the villagers for conversion of agricultural lots into building lots. Also, the premium at two-third of the full market rate was “tied”[76] to the level at which the upset price was set for (restricted) village auctions (which were in use between the late 1950s and 1972), instead of the value of the Free Building Licence. In any event, there is no evidence to show that any concession of the premium that was given, whether before or after 1972, was made in recognition, or on the understanding, that the villagers had, prior to 1898, the right to acquire land to build houses, whether at a concessionary rent/land tax or otherwise. 122.That there is a distinction to be drawn between Free Building Licence and Private Treaty Grant for the purpose of the present discussion is also supported by my reading of a report titled “The New Territories Small House Policy” (“the Report”) prepared by Mr Lam Ding Kwok Joseph (Chief Land Executive) of the New Territories Administration dated February 1980. In Chapter 1 of that report, under the heading “the Background of the Small House Policy”, it is stated, in relation to Free Building Licence, as follows:
123.However, when it comes to Private Treaty Grant, the Report states:
124.Significantly, unlike the discussion in respect of Free Building Licence, it is not suggested in the Report that the system of Private Treaty Grant was based on, or related to, any recognition of any right of the New Territories indigenous villagers to build houses in their villages at the time of the New Territories Lease. 125.On behalf of the Kuk, Lord Pannick argues that “the right to claim new land for building was preserved by a combination of policies, including public auctions at a concessionary rate, Restricted Village Auctions, and Private Treaty Grants”[77], and “[t]he pre-1898 custom of acquiring unoccupied land for building houses was equally protected by the British administration”[78] by the above means. I am unable to accept this submission, for the following reasons:
126.It has not seriously been suggested by the Government or the Kuk that the third form of Small House Grants, ie Exchange, is, or is traceable to, any traditional right or interest of the New Territories indigenous inhabitants. In my view, it is not. 127.In all, I consider that the Ding Rights in the form of Private Treaty Grant or Exchange are not “traditional” rights or interests of the New Territories indigenous inhabitants within the meaning of BL 40, and therefore are not protected by that article. XI. THE “LAWFUL” (合法) ELEMENT IN BL 40 128.I can deal with the “lawful” (合法) element in BL 40 more briefly. The purpose of BL 40 is, as I see it, to protect or preserve those rights and interests of the New Territories indigenous inhabitants which can properly be regarded as their “traditional” rights and interests after 1 July 1997. It was clear to everyone concerned at the time of the drafting of the Basic Law that some such rights or interests might be open to objection on the ground that they were discriminatory in nature. It would thus not be consistent with the purpose of BL 40 to allow such rights or interests to be challenged on the ground of discrimination, or other grounds of unlawfulness. 129.I do not accept the submissions of Mr Martin Lee, SC (for the Applicants) that “lawful” in BL 40 means lawful according to both Qing Law before the New Territories Lease of 1898 and the domestic laws of Hong Kong in 1997. In particular, I do not consider that the drafters or makers of the Basic Law, which was prepared in the late 1980s and promulgated in early 1990, would be concerned with the state of lawfulness, or legality, of the traditional rights and interests of the New Territories indigenous inhabitants under Qing Law prior to 1898. I believe that Lord Pannick is correct in his submission that “lawful” in the present context is merely descriptive of those traditional rights and interests which were enjoyed by the New Territories indigenous inhabitants, but I respectfully disagree with him as regards the timeframe that such rights or interests had to be enjoyed by the New Territories indigenous inhabitants in order for them to come within the scope of BL 40. 130.In all, I am of the view that the Ding Rights in the form of Free Building Licence is a lawful traditional right and interest of the New Territories indigenous inhabitants within the meaning of BL 40, but not Private Treaty Grant or Exchange. 131.BL 122 states as follows:
132.The meaning and effect of this article, in so far as Small House Grants are concerned, is as follows: the previous rent (ie the rent fixed prior to 1 July 1997) shall remain unchanged in two situations:
so long as the property is held by that lessee or by one of his lawful successors in the male line. 133.The date of 30 June 1984 referred to in this article was fixed by paragraph 2 of Annex III (Land Leases) to the Joint Declaration. 134.There is, I consider, a distinction between the lawfulness of the Small House Policy, and the lawfulness of Small House Grants made under the policy. The fact that the Small House Policy, or a part of it, is unlawful, does not mean that a Small House Grant made under that policy is also unlawful. The Small House Grant so made remains a valid land grant, unless there is some basis to set it aside and it has been set aside by the court. At the moment, I do not see any valid basis to set aside a Small House Grant merely because the Small House Policy, or a party of it, is unlawful. Since I have not received any submissions from the parties on this issue, I should not be taken to have expressed a final view on this point. On the basis of my current understanding of the matter, I do not see that BL 122 would be inconsistent, or stand as any obstacle, to the court’s finding that the Ding Rights in the form of Private Treaty Grant or Exchange are not “lawful traditional rights and interests” of the New Territories indigenous inhabitants within the meaning of BL 40. 135.Having come to the above conclusions, it becomes unnecessary for me to consider the Applicants’ challenge based on BL 7. In particular, in so far as Free Building Licence is concerned, if it is protected by BL 40, I do not consider that it can be challenged on the ground of inconsistency with BL 7. 136.Both Mr Yu and Lord Pannick argue that relief should be refused, and the application for judicial review should be dismissed, because (i) the Applicants lack standing, and (ii) the Applicants have delayed in making the application. 137.In so far as standing is concerned, I consider that the Applicants have sufficient standing to challenge the Small House Policy, because they are discriminated against by the application of the policy based on their social origin or birth. 138.In so far as delay is concerned, there is no doubt that the Applicants have been guilty of serious delay in making the application: in the case of Mr Kwok the delay is more than 18 years after the coming into force of the Basic Law, and in the case of Mr Lui the delay is more than 21 years. Neither has offered any, or any reasonable, explanation for the delay. 139.In view of the fact that leave to apply for judicial review has been granted to Mr Kwok by Au J (as he then was), the focus of the consideration is not whether good reasons can be shown to justify an extension of time to apply for leave to apply for judicial review, but whether relief ought to be refused by reason of hardship, prejudice or detriment to good administration as a result of the delay[79]. 140.Lord Pannick argues that by reason of the Applicants’ delay, prejudice or hardship would be caused to the New Territories indigenous inhabitants were the court to grant relief in this application. He points to the fact that many Small House Grants would have been made to them since 1 July 1997, and many persons eligible under the Small House Policy and their families would have ordered and conducted their affairs on the basis of the policy[80]. 141.On the other hand, I have been referred to the following statement of Ma CJHC (as he then was, and with whom the other members of the Court of Appeal agreed) in Leung v Secretary for Justice [2006] 4 HKLRD 211, at paragraph 39, which I believe should guide the court’s exercise of discretion on the issue of delay:
142.I note that in the Leung case, the Chief Judge referred, at the beginning of paragraph 39, to the question of whether the judicial review proceedings should be allowed to proceed notwithstanding the delay (in other words whether the court should extend the period within which the application can be made), whereas in the present case the focus of the court’s consideration is whether relief should be refused. Nevertheless, I consider the factors mentioned by the Chief Judge to be equally relevant to the present inquiry. 143.I also note that there are some differences between the Leung case and the present one, including:
144.In my view, the potential hardship or prejudice to the New Territories indigenous inhabitants can, to a large extent, be addressed by making it clear, as I believe to be the correct legal position, that any relief which may be granted will not invalidate or affect any Small House Grants made prior to the date of the judgment, or the date on which this judgment shall take effect (see paragraph 148 below). I do not consider that relief ought to be refused on the ground of delay having regard to the elements of public interest, the issue of fundamental human rights, and the fact that a further challenge to the Small House Policy can be brought at any time by any person who acts promptly (eg a person who just turns 18). 145.I grant leave to the Applicants to re-amend the Form 86 in the form of the draft received by the court on 27 December 2018 which, inter alia, (i) omits the Chief Executive in Council as a respondent, and (ii) narrows down the scope of the judicial review, with costs of the amendments to the Government and the Kuk. 146.I dismiss Mr Kwok Cheuk Kin’s summons dated 14 November 2018 seeking leave to file and serve his 7th Affirmation made on 13 September 2018 (which has been admitted on a de bene esse basis), because I do not consider the matters stated in that affirmation to be of sufficient relevance to the issues in this application for judicial review as would justify the admission of late evidence, with costs to the Government and the Kuk, including the costs of the hearing on 21 November 2018 (with certificate for 2 counsel in the case of the Kuk) and the Government’s costs in respect of the 3rd Affirmation of Lo Kam Lun Alan in reply filed on 29 November 2018 (which has also been admitted on a de bene esse basis). 147.I allow the present application for judicial review in so far as it relates to Private Treaty Grant and Exchange, being two of the three forms of land grant under the Small House Policy. The parties are agreed that the court should receive further submissions on the precise form of the relief to be granted in the event that the application for judicial review is successful. I direct the parties to file and exchange written submissions, limited to 5 pages each, within 21 days of the date of this judgment on the form of relief and on the issue of costs. 148.In view of the importance of this matter to the New Territories indigenous inhabitants and the general public of Hong Kong, the implications that this judgment may have on Government land administration, and the likelihood of an appeal to the Court of Appeal and eventually to the Court of Final Appeal, I direct that this judgment shall not take effect until after the expiration of 6 months from the date hereof, with liberty to the Government and the Kuk to apply for a longer stay pending any possible appeal of this judgment to the Court of Appeal. 149.Lastly, it remains for me to thank all counsel for their assistance rendered to the court in this difficult case.
Mr Martin Lee, SC, Mr Jeffrey Tam and Ms Isabel Tam, instructed by M/s Ho, Tse, Wai & Partners, for the 1st and 2nd Applicants Mr Benjamin Yu, SC, Mr Mok Yeuk-chi and Mr Anthony Chan, instructed by Department of Justice, for the 1st to 3rd Respondents Lord Pannick, QC, Mr Jat Sew-tong, SC, Mr Jin Pao, SC and Mr Danny Tang, instructed by M/s T.K. Tsui & Co., for the Interested Party [1] See paragraphs 57 and 58 of the 2nd Affirmation of Chow Man Yee, Assistant Director (Estate Management) of the Lands Department. [2] Eligibility Criteria, paragraph (C). [3] Definitions, paragraph (I)(B)(a). [4] Definitions, paragraph (I)(B)(b). [5] Definitions, paragraph (I)(B)(c). [6] Explanatory Notes, paragraph (II)(c). [7] Explanatory Notes, paragraph (II)(h). [8] Introduction, paragraph (I)(A)(a). [9] Explanatory Notes, paragraph (II)(a). [10] Explanatory Notes, paragraph (II)(e). [11] Explanatory Notes, paragraph (II)(g). [12] Important Points to Note, paragraph (III)(b). [13] See paragraph 88 of the 2nd Affirmation of Chow Man Yee. [14] See paragraph 58 of the 2nd Affirmation of Chow Man Yee. [15] See paragraphs 61 and 62 of the 2nd Affirmation of Chow Man Yee. [16] This ExCo Memo related to an aspect of Free Building Licence which will be further considered below. [17] (2016) 19 HKCFAR 372. [18] See QT v Director of Immigration, FACV 1/2018 (4 July 2018), at paragraph 84. [19] See Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4, at paragraph 74; Cheng Kar Shun v Li Fung Ying [2011] 2 HKLRD 555, at paragraph 162 per Andrew Cheung J (as he then was). [20] See Chong Fung Yuen, at 224E-G; Ng Ka Ling, at 28D-I. [21] See paragraph 19.5 of the Skeleton Submissions for the Government dated 21 November 2018, referring to Re BC Motor Vehicle Act [1985] 2 SCR 686, at 504e-509h per Lamer J (as he then was). [22] See Chief Executive of HKSAR v President of the Legislative Council [2017] 1 HKLRD 460, at paragraph 51 per Cheung CJHC (as he then was); Kong Yunming v Director of Social Welfare (2013) 16 HKCFAR 950, at paragraph 163 per Bokhary PJ. [23] See HKSAR v Ma Wai Kwan David [1997] HKLRD 761, at 323G-H per Chan CJHC (as he then was) and at 361E-G per Mortimer VP; SJ v Lau Kwok Fai (2005) 8 HKCFAR 304, at paragraph 35 per Sir Anthony Mason NPJ; Catholic Diocese of Hong Kong v Secretary for Justice [2007] 4 HKLRD 483, at paragraph 119 per Andrew Chung J (as he then was). [24] See R (on the application of Edison First Power Ltd) v Central Valuation Officer [2003] 4 All ER 209, at paragraph 116 per Lord Millet; see also T v Commissioner of Police (2014) 17 HKCFAR 593, at paragraph 281 per Lord Neuberger. [25] See Endell Thomas v AG of Trinidad and Tobago [1982] AC 113, at 135E-F per Lord Diplock. [26] See paragraph 22 of the Skeleton Submissions for the Government. [27] See paragraph 25 of the Skeleton Submissions for the Government. [28] See paragraph 23.1 of the Skeleton Submissions for the Government. [29] See paragraph 25 of the Skeleton Submissions for the Government. [30] See paragraph 29 of the Skeleton Argument for the Kuk dated 21 November 2018. [31] See paragraph 16(2) of the Skeleton Argument for the Kuk. [32] See paragraph 26 of the Applicants’ Reply Submissions dated 26 November 2018. [33] See paragraphs 63 to 66 of the Applicants’ Reply Submissions. [34] At page 285A-C of the law report. [35] See, for example, (i) the minutes of the 2nd meeting of the Special Group held on 22 April 1986, at paragraph 4; (ii) the “Background” section of the Seminar Report mentioned in paragraph 51 below, at paragraph 2; (iii) the note to article 17 of the discussion draft of the Basic Law considered at the Third Plenary Session of the Basic Law Drafting Committee on 29 November 1986; (iv) the Special Group’s Final Report on the Rights and Interests of Indigenous New Territories Inhabitants passed on 14 March 1987, at paragraph 3.2.3; and (v) the Public Consultation Report, Vol 5, dated October 1988 prepared by the Basic Law Consultative Committee, at paragraph 1. [36] See, for example, the Public Consultation Report, Vol 4, dated October 1988 prepared by the Basic Law Consultative Committee, at paragraph 6.1. [37] [1999] 3 HKLRD 267, at 285D-I. [38] See paragraphs 61 and 136 of the Skeleton Submissions for the Government. [39] See paragraph 3.7 of the Compilation. [40] Paragraph 2 of Annex III provides: “In the case of old schedule lots, village lots, small houses and similar rural holdings, where the property was on 30 June 1984 held by, or, in the case of small houses granted after that date, the property is granted to, a person descended through the male line from a person who was in 1898 a resident of an established village in Hong Kong, the rent shall remain unchanged so long as the property is held by that person or by one of his lawful successors in the male line”. [41] See paragraph 6 of the Joint Expert Report of Professor Cheung and Dr Hase. [42] See paragraph 48 of the Skeleton Argument for the Kuk. [43] See paragraph 32 of the Joint Expert Report of Professor Cheung and Dr Hase dated 16 November 2018. [44] See paragraph 30 of the Joint Expert Report of Professor Cheung and Dr Hase. [45] See paragraph 22 of the Joint Expert Report of Professor Cheung and Dr Hase. [46] See the “Memorandum on Land” prepared by Mr Messer and Mr Tsui attached as Appendix No III to the Report on the New Territory during the First Year of British Administration prepared by Mr Stewart Lockhart, Colonial Secretary and laid before the Legislative Council by Governor Henry Blake on 19 February 1990, and a document titled “Some Notes on Land Tenure in the New Territory: General Theory of Chinese Tenure” prepared by Mr Gompertz, Member of Land Court attached as Appendix No 1 to Mr Lockhart’s Report on the New Territory for the Year 1990. [47] See paragraph 42 of Professor Cheung’s second report dated 19 September 2018. [48] See Winfat Enterprises (HK) Co Ltd v Attorney General [1984] HKLR 32, at 43-44 per Roberts CJ giving the judgment of the Court of Appeal. [49] See paragraph 3 of CSO 4865/1906 contained in the “Notes for Use in the District Land Offices NT 1906 (1908)”. [50] See paragraph 4 of the Joint Expert Report of Mr Davison and Dr Hase. [51] See paragraph 4(i) of the Joint Expert Report of Mr Davison and Dr Hase. [52] See paragraph 61 of Dr Hase’s first report. [53] At $10 per lot (see paragraph 63 of Dr Hase’s first report). [54] See paragraph 64 of Dr Hase’s first report. [55] See page 20 of Mr Davison’s second report. [56] See the Joint Expert Report of Mr Davison and Dr Hase, at paragraph 22. [57] See the Joint Expert Report of Mr Davison and Dr Hase, at paragraph 21. [58] See the District Commissioner, NT’s confidential memo to the Colonial Secretary titled “Small House in the New Territories” dated 18 September 1971, at paragraph 21. [59] See paragraph 22 of the Joint Expert Report of Mr Davison and Dr Hase. [60] See various minutes from the Crown Solicitor, Attorney General and Colonial Secretary dated 16 and 17 January 1906 in CSO No 807/06. [61] See paragraphs 43 and 46(c) of the 2nd Affirmation of Chow Man Yee. [62] Reproduced in the Supplemental Notes to Jacks Digest prepared in 1939. Those notes were supplementary to the Digest of Instructions from the Secretary of State for the Colonies (with local rulings) regarding Disposal and Tenure of Land in the Colony of Hong Kong compiled by Philip Jacks in 1930. Mr Philip Jacks was the Land Officer between 1905 and 1935. [63] See paragraph 76 of Dr Hase’s first report. [64] See paragraphs 8 to 10 of the Joint Expert Report of Mr Davison and Dr Hase. [65] See paragraph 11 of the Joint Expert Report of Mr Davison and Dr Hase. [66] See paragraph 12 of the Joint Expert Report of Mr Davison and Dr Hase. [67] See, for example, paragraph 89 of Dr Hase’s first report. [68]See paragraph 5 of the Outline of the Government’s Submissions dated 26 November 2018. [69] See paragraph 18 of the Outline of the Government’s Submissions. [70] See paragraph 19 of the Outline of the Government’s Submissions. [71] See paragraph 21.25 of the Outline of the Government’s Submissions. [72] See paragraphs 20 to 22 of the Joint Expert Report of Professor Cheung and Dr Hase. [73] See paragraph 23 of the Joint Expert Report of Professor Cheung and Dr Hase. [74] See paragraph 33 of the Joint Expert Report of Professor Cheung and Dr Hase. [75] See paragraph 131 of the Skeleton Submissions for the Government. [76] See footnote 1 on page 6 of a report titled “The New Territories Small House Policy” prepared by Mr Lam Ding Kwok Joseph (Chief Land Executive) of the New Territories Administration dated February 1980. [77] See paragraph 57 of the Skeleton Argument for the Kuk. [78] See paragraph 68 of the Skeleton Argument for the Kuk. [79]See BH v Director of Immigration, HCAL 105/2014 (14 April 2015), at paragraphs 88 to 96; and on appeal BI v Director of Immigration, CACV 9, 103, and 134/2015 (8 March 2016), at paragraph 135. [80] See the Kuk’s Skeleton Argument, at paragraph 103(1) to (4). | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment