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 and Au JA.
Constitutional law – Basic Law – Article 40 – lawful traditional rights and interests of the New Territories indigenous inhabitants (NTIIs) – New Territories Small House Policy – Ding Rights – construction – context and purpose – coherence principle – BL25, BL39, BL120, BL122 – CEDAW reservations – discrimination based on sex, social origin and birth – historical background – pre-1898 customary tenure – free building licence – private treaty grant – exchange (surrender and re-grant) – Annex III of the Joint Declaration – Joint Declaration – Sex Discrimination Ordinance Schedule 5 – standing – delay – judicial review – public law – administrative law – land law. The New Territories Small House Policy was approved by the Executive Council on 14 November 1972 and has been implemented since December 1972 to date. Under the policy, an indigenous male villager in the New Territories, descended through the male line from a resident in 1898 of a recognized village, may apply once in his lifetime for a small house grant in one of three forms: free building licence (on private land), private treaty grant (on Government land at a concessionary rate of about two-thirds of the full market rate), and land exchange (surrender and re-grant). The applicants Kwok Cheuk Kin and Lui Chi Hang, Hendrick brought judicial review proceedings (HCAL No. 260 of 2015) challenging the constitutionality of the policy on three grounds: discrimination against non-indigenous persons contrary to BL25, BL39 and/or BOR22; discrimination against female indigenous villagers based on sex; and breach of BL7 in the management of land. The respondents and the interested party (Heung Yee Kuk) invoked BL40, arguing that the Ding Rights were lawful traditional rights and interests of NTIIs, thereby rendering the policy constitutional. Chow J held that the policy was inherently discriminatory on grounds of social origin/birth and sex contrary to BL25 and BOR22, but concluded that only the free building licence form of grant (and not private treaty grant or exchange) satisfied the 'traditional' and 'lawful' elements of BL40, being traceable to NTIIs' pre-1898 rights under the customary tenure. He made declarations that the policy was unconstitutional to the extent of private treaty grants and exchanges at concessionary rates, and that Schedule 5, Part 2, Paragraph 2 of the SDO was correspondingly unconstitutional. On appeal (CACV 234/2019, 317/2019, 319/2019), the Court of Appeal (Poon CJHC, Lam VP and Au JA) allowed the respondents' and interested party's appeals and dismissed the applicants' appeals. The Court held, applying a contextual and purposive approach, that 'lawful traditional rights and interests' in BL40 mean those rights and interests which were, as a matter of historical fact, recognized as the NTIIs' lawful traditional rights and interests in the Hong Kong legal system at the time of the promulgation of the Basic Law on 4 April 1990. BL40 elevates such recognition to a constitutional level for such rights and interests after 1 July 1997. The Court rejected the 'tracing exercise' to pre-1898 customary tenure, holding that no such tracing back to 1898 is required, and that the Ding Rights in their entirety (including all three forms of grant) fall within BL40 protection. The Court applied the coherence principle, reading BL40 together with BL120 and BL122 (which implement Annex III of the Joint Declaration) and with the CEDAW reservations, so that the Basic Law is read as a coherent whole. The Ding Rights were recognized in legislation (BO(ANT)O, SDO Schedule 5, GRACO) and embodied in long-standing government policy since 1972, with no legal challenge ever having been brought despite the BOR coming into force in 1991. The Court also held that even on the Judge's approach, the respondents' and interested party's case would still succeed because the essential or core features of an eligible NTII's right to apply for new land to build a house were preserved through the successive means of disposal of New Territories land (public auctions, private treaty grants, restricted village auctions, and private treaty grants), and exchange is simply a derivative of free building licence. On the alternative Relief Issue, the Court held that, even if the policy were unconstitutional, relief would have been refused on the grounds of the applicants' serious and unexplained delay (the policy having been in force for over 40 years, the BOR since 1991, and the Basic Law for 23 years) and lack of standing (the applicants having no specific interest over and above that of ordinary residents). The judgment of Chow J and the orders of 30 April 2019 were set aside, and the judicial review application was dismissed. Costs were reserved for determination on written submissions.
Legal issues: Whether the Ding Rights are 'lawful traditional rights and interests of the NTIIs' under BL40 · Whether relief should be refused for delay and lack of standing
Outcome: Appeals brought by the respondents and the interested party allowed; applicants' appeals dismissed. The Court of Appeal set aside the judgment of Chow J dated 8 April 2019 on the constitutionality of private treaty grant and exchange, and the orders made on 30 April 2019. The applicants' application for judicial review was dismissed. The Court held that the New Territories Small House Policy is constitutional in its entirety.
Cited by 15 cases · Cites 3 cases