Read the full judgment text of CACV 234/2019; CACV 317/2019; CACV 319/2019 on BabelCite. This Court of Appeal judgment was delivered on 13 January 2021 before Poon CJHC, Lam VP, Au JA.
Constitutional law – Basic Law – interpretation – Article 40 – protection of 'lawful traditional rights and interests' of New Territories indigenous inhabitants ('NTIIs') – New Territories Small House Policy – Ding Rights – historical context of NTIIs' pre-1898 custom to build houses for their own occupation on their own land – recognition by Colonial Government from 1898 and formal endorsement in 1959 – Small House Policy introduced 1972 – protection of small house grants in Annex III of Sino-British Joint Declaration – Basic Law Articles 40, 120 and 122 – whether the Ding Rights are 'lawful traditional rights and interests' of the NTIIs under BL40 – whether the entire Small House Policy, including all three forms of grant (free building licence, private treaty grant, and exchange), is shielded from constitutional challenge on grounds of discrimination based on social origin/birth and sex contrary to BL25, BL39 and BOR22 – contextual and purposive construction – coherence principle – CEDAW reservations by UK (14 October 1996) and PRC (10 June 1997) – Sex Discrimination Ordinance Schedule 5, Part 2, Paragraph 2 – whether 'lawful traditional rights and interests' require historical tracing exercise to pre-1898 rights and interests – whether the Small House Policy is constitutional in its entirety. The Court of Appeal allowed the appeals by the respondents and the interested party and dismissed the applicants' appeals, holding that the Ding Rights in their entirety constitute the NTIIs' 'lawful traditional rights and interests' within the meaning of BL40 and that the entire Small House Policy is constitutional. The Court rejected the tracing exercise and held that 'lawful traditional rights and interests' are those recognized as such in the Hong Kong legal system at the time of the promulgation of the Basic Law on 4 April 1990. Reading BL40 together with BL120 and BL122 in light of Annex III of the Joint Declaration and the CEDAW reservations, the Ding Rights are protected from any discrimination challenge based on sex or other grounds, including birth or social origin. The Court further held that, in any event, relief would have been refused on the grounds of phenomenal and unexplained delay and the applicants' lack of standing. The judgment of Chow J ([2019] HKCFI 867) and the orders of 30 April 2019 were set aside, and the judicial review application was dismissed.
Legal issues: Constitutional protection of the Ding Rights under BL40 · Refusal of relief on grounds of delay and standing
Outcome: Appeals by the respondents and the interested party allowed; applicants' appeals dismissed. The Judge's judgment of 8 April 2019 and the orders made on 30 April 2019 set aside insofar as they declared private treaty grant and exchange unconstitutional. Applicants' application for judicial review dismissed. The entire New Territories Small House Policy, including all three forms of grant (free building licence, private treaty grant, and exchange), is constitutional and lawful by virtue of BL40.
Cites 4 cases