Lai Hay on v. Commissioner of Rating and Valuation and Another
Read the full judgment text of CACV 130/2007 on BabelCite. This Court of Appeal judgment was delivered on 31 March 2010.
1. Lot 790A was granted to Lai Shing Chu by a Block Crown Lease (government lease) dated 27 March 1905 for a term of 75 years from 1 July 1898 with an option to renew for a term of 24 years less 3 days without payment of any premium.
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CACV 130/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 130 OF 2007 (ON APPEAL FROM LDGA NOS. 78 AND 79 OF 2006) ______________ BETWEEN
______________ Before: Hon Tang VP, Cheung JA and Yuen JA in Court Date of Hearing: 5 March 2010 Date of Judgment: 31 March 2010 _______________ JUDGMENT _______________ Hon Tang VP: Introduction 1.Lot 790A was granted to Lai Shing Chu by a Block Crown Lease (government lease) dated 27 March 1905 for a term of 75 years from 1 July 1898 with an option to renew for a term of 24 years less 3 days without payment of any premium. 2.Between 26 June 1953 and 27 September 1989, Lot 790A together with other lots were owned by the appellant’s father, Mr Lai Tin Sung, and Mr Lai Ching Mui as tenants in common in equal shares. On 27 September 1989, they entered into a Deed of Partition as a result of which Lot 790A, together with other lots, were allocated to the appellant’s father. 3.Lot 790A, together with other lots, were assigned by way of gift to the appellant by his father by an assignment dated 5 November 1992. 4.The appellant was the only son of his father, who passed away on 16 October 1994. 5.By operation of section 4 of The New Territories (Renewable Government Leases) Ordinance, Cap. 152, the lease of Lot 790A was renewed on 30 June 1973 by the deemed exercise of the option to renew for a term of 24 years less 3 days to 27 June 1997. 6.Para. 2 of Annex III to the Joint Declaration which was made on 19 December 1984 and ratified on 27 May 1985 provides:
7.In order to give effect to para. 2 of Annex III, the New Territories Leases (Extension) Ordinance, Cap. 150 (“the Extension Ordinance”) was enacted on 21 January 1988. The Preamble reads:
8.Section 6 of the Extension Ordinance provides for the extension of non-renewable leases in the New Territories to 30 June 2047. Lot 790A was held under a non-renewable lease within the meaning of the Joint Declaration and the Extension Ordinance, and as such was entitled to be and was extended until 30 June 2047. It is common ground that the appellant’s father was a person descended through the male line from a person who was in 1898 a resident of an established village in Hong Kong. The critical issue in this appeal is whether the appellant held Lot 790A as his father’s “lawful successor” as a result of the inter vivos gift. 9.Section 8 of the Extension Ordinance provides that during the period of extension, the annual rent would be an amount equal to 3% of the rateable value of the land leased (“the annual rent”). Section 9 exempted from the liability to pay the annual rent as follows.
10.Under section 9(3), “lawful successor” includes “a lawful successor according to Chinese customary law in operation in the New Territories”. 11.The Basic Law was promulgated on 4 April 1990 and took effect on 1 July 1997. Section 2 in Chapter V deals with land leases. Articles 121 and 122 are relevant and they are identical to para. 2 of Annex III to the Joint Declaration in all material respects. They provide:
12.The Government Rent (Assessment and Collection) Ordinance, Cap. 515 (“GRACO”) was enacted on 30 May 1997. By section 6(3)(a) of GRACO, subject to any exemption, the annual rent became payable from 28 June 1997 in respect of a lease extended by section 6 of the Extension Ordinance. Sections 8 and 9 of the Extension Ordinance were repealed and replaced by the provisions of GRACO, in particular, section 4. Section 4 of GRACO, where relevant, provides:
13.Under section 2 GRACO, unless the context otherwise requires:
The Lands Tribunal 14.By letter dated 24 August 1999, the appellant was informed by the Lands Department, inter alia, that exemption from the annual rent in respect of Lot 790A pursuant to section 4 of GRACO was refused. That is because the appellant was not “a lawful successor” within the meaning of section 4(a)(ii)(B) of GRACO. Under section 26(1) of GRACO the appellant was entitled to appeal against such refusal within 28 days of the notice of decision. However, the appeal to the Lands Tribunal was not made until 7 September 2006. The Lands Tribunals dismissed the appeal on two bases. First that the appeal was out of time and no application for extension of time had been made. Secondly, the appellant was not a lawful successor within the meaning of GRACO. 15.The Lands Tribunal rejected the appellant’s submission that GRACO was inconsistent with Arts. 40 or 122 of the Basic Law. The appellant argued then, and again before us, that GRACO is inconsistent with Art. 40 because exemption from government rent other than the nominal rent payable under the government lease was a traditional right under Art. 40. Art. 40 provides:
The Appeal 16.This matter first came before this court (differently constituted) on 22 May 2008. The appellant appeared in person, as he has done throughout the proceedings. The respondents were throughout represented by Mr Johnny Mok, SC. The appellant complained that he had only received the respondents’ skeleton submissions and authorities (all in English and the bulk of it was concerned with the constitutionality of section 4, GRACO) on 19 May 2008 and that he needed two weeks to digest them. The Court granted an adjournment. We were told that the Heung Yee Kuk New Territories (“HYK”) was aware of the proceedings and the appellant had been in communication with HYK. The Court extended an invitation to HYK through the appellant to appear on the hearing of the appeal. 17.On 28 November 2008, Mr 李國英, JP (“Mr Lee”), an executive member of HYK, appeared on behalf of HYK. We were told that HYK had had their first meeting on 18 November 2008 to discuss the proceedings and Mr Lee was authorised to make oral submissions on HYK’s behalf. The court decided to appoint an amicus curiae. For that reason the hearing had to be adjourned. The court also invited HYK to make its representation in writing. 18.Mr Godfrey Lam, SC, was appointed amicus curiae. His helpful and comprehensive submission was provided on 2 July 2009. 19.The next hearing took place on 10 July 2009. Unfortunately, the respondent’s reply to the amicus curiae’ submission was only ready on 8 July 2009 and the Chinese translation was not yet available. So the matter had to be adjourned. On this occasion, no one appeared on behalf of HYK. We were told because Mr Lee was out of Hong Kong and HYK was unable to find a replacement. However, a written submission dated 6 May 2009 was provided to the Court. 20.The appeal was eventually heard on 5 March 2010. Mr Mok, SC, again appeared for the respondents. The appellant appeared in person. Mr Lam, SC, appeared as amicus curiae. Mr Andrew Wong, an executive member of the HYK, appeared on behalf of HYK and made oral submissions on behalf of HYK. GRACO 21.The learned judge held that Lot 790A was not exempted from payment of the annual rent because the appellant acquired his interest by way of an inter vivos transfer and not by succession upon the death of his father, who was the indigenous villager. The learned judge relied on a long line of decisions of the Lands Tribunal. 22.Mr Lam relies on陳根蘭 v The Director of Lands, LDGA 3/2001 (unreported, 25 September 2001), a decision of Judge Lam (as he then was). The judgment was in Chinese but an English translation has been provided. I will refer to the translation. In that case, a lot of land in the New Territories was conveyed by an inter vivos transfer to the appellant by his father who was an indigenous villager and owner of the lot on 30 June 1984. The appellant claimed that the lot should be exempted from the annual rent, and appealed to the Lands Tribunal from a decision of the Director of Lands who had decided that he was not entitled to exemption because:
23.The appellant’s father was still alive when the appeal was heard. The father also had two other sons. 24.Judge Lam said:
25.It is also clear that a person becomes a lawful successor by lawful succession and lawful succession is clearly defined. Section 4(1)(ii)(A) of GRACO requires that the land:
26.Those passages support the decision in the present case. 27.However, earlier in his judgment, Judge Lam also said:
28.Mr Lam relies on these earlier passages. He also relies on the wording of clause 4(1)(ii) of the Government Rent (Assessment and Collection) Bill (“the Bill”), which read as follows:
as support that the legislature has specifically rejected the notion that the holder of the relevant interest must have inherited it by lawful succession. 29.He relies in particular on Judge Lam’s description of the appellant difficulty as “temporal”（時空上的困難）. He submitted that that supports the view that if and when the father dies, and the son was allowed to succeed to part of his father’s estate, the son would have become a successor. I disagree. The son could not overcome the effect of section 4(1)(ii)(A) which Judge Lam mentioned in para. 14 of his judgment. 30.I believe the ratio of Judge Lam’s decision is to be found in paras. 13 and 14 of his judgment quoted above. His earlier observations provide little support for Mr Lam’s submission. Once it is accepted, as Judge Lam has held, that the inter vivos transfer to the son was not a transfer to a successor, exemption from the annual rent was lost forever. Thus, even if, which I doubt, the son could and did become a successor of his father on the death of the father within the meaning of GRACO, the break in continuity is fatal to exemption. 31.I accept that the language of GRACO could have been clearer and that the definition of lawful successor does not say in terms that the lawful successor must be the lawful successor of an interest in the land in respect of which exemption under section 4 was claimed. However I cannot accept Mr Lam’s submission that:
32.I turn to the wording of clause 4(1)(ii) the Bill. The relevant provisions read:
33.I do not find the expression “has inherited” in section 4(1)(ii) of the Bill helpful. Having regard to the identical definition of lawful successor in both the Bill and GRACO, one might think it tautologic to say that the lawful successor has inherited by lawful succession. Furthermore, when the provisions in the Bill are compared with the relevant provisions in GRACO, one sees that the provisions in the Bill contained a possible loophole, namely, exemption might be enjoyed by an indigenous village who had sold his land after 30 June 1984, then re-acquired it, and left it to his son by succession. The provisions in GRACO have closed that loophole. That may explain the change in language. Succession 34.I have set out the definition of “lawful successor” and “lawful succession” in section 2 of GRACO in para. 13 above. I think it is not controversial that a person cannot be a lawful successor except by lawful succession. Lawful succession is defined as succession, whether testate or intestate or in accordance with Chinese customary law. Mr Mok rightly reminded us that we are only concerned with Chinese customary law operating in the New Territories, as is expressly provided by both section 9(3) of the Extension Ordinance and section 2 of GRACO. 35.As early as 1920, it was decided that while the Chinese law and custom governing the distribution of assets on death is part of the law of Hong Kong, the general law providing the machinery of administration applies to Chinese estates. Thus, the court upheld the right of a concubine who had been granted letters of administration to administer the estate. Ho Cheng Shi v. Ho Sau Lam [1920] 15 HKLR 35. 36.I agree with Mr Lam’s submission that:
37.So far as land in the New Territories is concerned, succession could be (i) testate, (ii) intestate, or (iii) in accordance with Chinese law and custom operating in the New Territories. I will deal first with intestate succession. A submission we have to consider in due course is whether a mode of distribution during the lifetime of a pater familias (Fenjia)（分家） is a mode of succession in accordance with Chinese customary law operating in the New Territories. Intestate succession 38.Intestate succession was, until the enactment of the Intestates’ Estates Ordinance, Cap. 73 (“IEO”) which came into force on 7 October 1971, governed by Chinese customary law. For deaths after 7 October 1971, devolution would be governed by the IEO, an important change is that daughters would share equally with sons. However, section 11 of the IEO provided that land in the New Territories:
39.Section 11 of IEO was repealed on 24 June 1994 by the New Territories Land (Exemption) Ordinance, Cap. 452 (“the Exemption Ordinance”). Thereafter, on intestacy, New Territories land would devolve in accordance with IEO such that e.g. daughters will share with sons. Testate Succession 40.The right of a Chinese person, domiciled in Hong Kong, to dispose of his assets by will was challenged in re Tse Lai-chiu, deceased [1969] HKLR 159. There, the will was made on 5 November 1958 and the testator died on 27 July 1960. At that time, personalty of a Chinese person domiciled in Hong Kong, devolved according to Chinese customary law. See Ho Tsz Tsun v. Ho Au Shi [1915] 10 HKLR 69. 41.In Tse Lai-chiu Hogan CJ said at 192:
42.Mr Lam submitted and I agree that by 1984 and 1990, it was also generally accepted that a Chinese person could validly dispose of his property by a will made in accordance with the common law: In Tse Lai-chiu, although there had been some doubt whether such testamentary power extended to land in the New Territories (ibid., p.193 p.200). 43.Whatever doubt there might have been in 1969 when Tse Lai-chiu was decided regarding testamentary power over land in the New Territories such power has been taken for granted for a long time. In Lau Wong Fat v AG [1997] 7 HKPLR 307, where the court dealt with a challenge to the Exemption Ordinance regarding the abolition of the Chinese customary rule of succession according to the male line on an intestacy, Godfrey JA (as he then was) said (with the agreement of Litton VP and Ching JA (as they then were)) the Exemption Ordinance:
Succession according to Chinese customary law 44.Section 17 of the New Territories Ordinance, Cap. 97 (“NTO”) provides:
45.Section 13 of the NTO provided that in any proceedings in relation to land in the New Territories, the court shall have power to recognize and enforce any Chinese custom or customary right affecting such land. In Tang Kai-chung v. Tang Chik-shang [1970] HKLR 276 at 295, it was held that the court is mandated, and not just permitted, to apply Chinese custom and customary right. 46.Mr Lam submitted and I agree:
47.In my opinion, section 17 of NTO provided the only means by which a succession according to Chinese customary law could be effected. And a section 17 succession could only take place on the death of the relevant ancestor. Section 13 of NTO must be read subject to section 17. 48.Thus, land in the New Territories could only devolve by way of succession by will, on intestacy by letters of administration, or under section 17 of NTO. 49.Wu Koon Tai and Anor v Wu Yau Loi [1997] AC 179 supports this view. The facts are complicated and do not matter. It is sufficient to note that at page 187 Lord Browne-Wilkinson, giving the judgment of the Privy Council said:
50.Earlier on the same page, Lord Browne-Wilkinson said:
51.Section 17 of NTO has been repealed by the Exemption Ordinance in 1994. After the repeal of section 17 of NTO, only two mode of successions are left. Fenjia（分家） 52.Mr Andrew Wong addressed us on whether an inter vivos gift could be regarded as succession according to Chinese law and custom. Mr Wong explained that inter vivos gifts were often employed to avoid disputes after the death of the donor. Also that sometimes for convenience sake an inter vivos gift would take the form of a sale. It appears from Mr Wong’s submission that he supported the view that Fenjia was a mode of succession recognised by Chinese law and custom in operation in the New Territories. However, it seems that both Mr Wong and Mr Lam accepted that Fenjia might not apply to the applicant because he was an only son. 53.Mr Lam has referred us to Yau Kwai and Ors v. Yau Kar Siu and Ors, (unreported, HCA 7129/1997 and HCMP 1363/2003, 23 July 2004). There, the expert evidence described Fenjia as a process of dividing the estate among the sons during the parents’ lifetime or after the death of the father, possibly under the supervision of the widow or family elders at para. 30 54.Mr Lam further submitted:
55.In Chapter II of Chinese Family and Commercial Law (1970 reissue), by Jamieson which covered “Law of Succession and Inheritance”, Jamieson dealt with sections 78, 87 and 88 of the Qing Code. In the Commentary at page 17 Jamieson said:
56.Section 87 of the Qing Code provided as follows:
57.The commentaries of Jamieson (at pp. 24-27), quoted by Mr Lam read:
58.I have to say that the materials provided have left me in considerable doubt whether “Fenjia” 分家 was indeed a mode of succession according to Chinese law or custom. But even if it were, it does not appear to apply where a father had only one son. In any event, for the reasons I have given above I do not accept there was room for Chinese customary succession otherwise than under section 17 of NTO. 59.It is also important to note that it was fundamental to the concept of Fenjia that the property to be divided was family property, such that:
60.In Kan Fat-Tat V Kan Yin Tat [1987] HKLR 516, I ventured to suggest that the concept of family property was not part of the law of the New Territories in 1898, and it was inconsistent with the concept of individual ownership and the right of testamentary disposition. At 529. I excluded from consideration, land held by tsos or tongs which as Re Lau Wai Chau (2000) 3 HKCFAR 98 shows must take the form of an endowment in perpetuity of property for the purpose of ancestral worship. And that
61.In my view the inter vivos gift to the applicant took effect as a gift and not by way of lawful succession, and the applicant did not thereby become his father’s successor in respect of Lot 790A. In any event, once the requirement of continuity is accepted, it is clear that Lot 790A had not continuously been held by the indigenous owner or his lawful successor. Thus, even if, contrary to my view, the applicant could become and did in due course become his father’s successor, that is irrelevant. 62.I should also mention that Mr Lam has suggested that if there is any inconsistency between the relevant provisions in the Extension Ordinance and GRACO, the earlier should take precedence. But I can see no relevant difference between section 9 of the Extension Ordinance and section 4 of GRACO. Nor is the definition of successor in the two ordinances materially different. 63.I turn now to consider the principal submissions of the appellant, the HYK, and Mr Lam, namely, whether section 4 of GRACO is inconsistent with Articles 40 or 122. I deal first with Article 122. Article 122 64.In Secretary for Justice v. Chan Wah (2000) 3 HKCF AR 459, Li CJ said the GRACO:
65.When dealing with different provisions in GRACO, Sir Anthony Mason NPJ said in Commissioner of Rating & Valuation v. Agrila (2001) 4 HKCFAR 83 at 112G that GRACO and the regulations made under it:
66.Mr Godfrey Lam submitted that as a matter of principle section 4 of GRACO ought to be interpreted in the light of Article 122 which in turn is to be interpreted in the light of paragraph 2 of Annex III to the Joint Declaration. However, it is also submitted that exemption from the annual rent is part of the “lawful traditional rights and interests of the indigenous inhabitants” provided by Article 40 such that “lawful successor” in Article 122 should be construed so as to include a person who has “succeeded” to the relevant land by an inter vivos gift. 67.It is not disputed that the term “lawful successor” in the male line in the Joint Declaration and the Basic Law includes a successor to the land concerned of the 1984 indigenous villager on his death. As noted, the question is whether it also includes a person who obtains the land in question by way of an inter vivos gift, especially if the inter vivos gift is the result of Fenjia (分家). 68.As stated by the CFA in Director of Immigration v. Chong Fung Yuen (2001) 4 HKCFAR 211 at 223H-224G, the correct approach to the interpretation of the Basic Law is to construe the language used in the text of the particular article of the Basic Law in the light of its context and purpose having regard to internal aids to interpretation such as other provisions in the Basic Law as well as extrinsic materials including the state of domestic legislation at the time of the adoption of the Basic Law (4 April 1990) and the time of the Joint Declaration (19 December 1984). 69.Both the Joint Declaration and Art. 122 provided for exemption from the annual rent “so long as” the property is held by an indigenous lessee on 30 June 1984 or by one of his lawful successors in the male line. Counsel submitted and I agree that the phrase “so long as” in Art. 122 is important because it implies continuity of holding by that person or his lawful successor. Both section 9(2) of the Extension Ordinance and section 4(1)(a) of GRACO give effect to the requirement of continuity. I note also that a condition for exemption is that the land “was on 30 June 1984” held by an indigenous inhabitant. The exemption was only extended to land in the New Territories held by an indigenous person “on 30 June 1984” and continued to be held by his lawful successor(s) in the male line thereafter. The exemption does not come with the status of being an indigenous inhabitant. 70.We are concerned with land in the New Territories to which Part II of NTO applies (I have referred to such land as land in the New Territories), in particular, land held under the government lease. The state of domestic legislation as at both 1984 and 1990 include section 8 NTO which declares that:
71.The effect of section 8 NTO is that whatever title or interest a person might have had prior to 23 July 1900, indeed whether he had any interest at all prior to 23 July 1900, is irrelevant. 72.Mr Lam reminded us that Lord Diplock in Winfat Enterprises (HK) Co Ltd v Attorney-General of Hong Kong [1985] 1 AC 733 at 744H said that prior to the lease of the New Territories to Great Britain in 1898, land in that region was generally held on common tenure and that it was a “perpetual interest, heritable and assignable and subject to no restriction upon building on the land”. But it is important to note that Winfat Enterprises decided (as summarised in the headnotes) that the government lease:
73.It is also important to remember that but for the Joint Declaration and the Basic Law, no extension of such leases beyond 30 June 1997 could have been granted. In other words, for all intents and purposes the Joint Declaration and the Basic Law (Art. 121) enabled the government (during the period from 27 May 1985 to 30 June 1997) to extend such leases beyond 30 June 1997 and to 30 June 2047, at the annual rent. Such extension was made possible by the Joint Declaration and Art. 121. 74.I believe “lawful successors” in Article 122 refers to a person who has become such by lawful succession. Article 122 does not permit or require lawful succession to have a more extensive meaning than as recognised by the law in Hong Kong. That is consistent with Article 8 which provides that:
75.At all relevant times, 19 December 1984 (Joint Declaration), 4 April 1990 (“the adoption of the Basic Law), as explained above there were only three ways by which succession could take place. By 1 July 1997, only two were left, section 17 NTO having been repealed by the Exemption Ordinance on 24 June 1994. 76.It follows that in my opinion, section 4 of GRACO is not inconsistent with Article 122. 77.I turn to consider Article 40. Article 40 – Traditional Rights and interests 78.Rent was payable under the government lease. It is not suggested that the rent was nominal when fixed. But as Mr Lam has pointed out, notwithstanding that the government lease contained a provision for a review of the rent after the first 10 years of the term, and that the rent for the new term of 24 years less 3 days was to be at a new rent to be fixed, the rent had never been revised. In time the rent has become nominal. Thus, no doubt for historical reasons, land in the New Territories have been treated more favourably. 79.The rationale was explained when the New Territories (Extension) Bill was moved in 1969:
80.In contrast, when Crown leases in other parts of Hong Kong were deemed renewed under section 3 of the Government Leases Ordinance (Cap.40) enacted on 14 December 1973, a new Government rent was imposed which was fixed at 3% of the rateable value of the lot as at 1 July 1973 or the date of expiry of the lease whichever was the later. 81.Also, in “Unequal Treaty 1898-1997”, Peter Wesley-Smith, Revised Edition, refers to:
82.In Secretary for Justice v. Chan Wah (2000) 3 HKCF AR 459, Li CJ stated that there was no dispute that the lawful traditional rights and interests within Article 40 "include various property rights and interests such as exemption from Government rent and rates in respect of certain properties held by indigenous villagers" (447E-F). In addition, he said (at 4771-J):
Both the applicant and the HYK placed heavy reliance on this dictum. 83.The right to exemption from the annual rent is governed by Article 122 which is the specific provision dealing with exemption to pay the annual rent in respect of a lease renewed by virtue of Article 121. For the reasons I have given above I believe “lawful successors” in Article 122 refer to a succession on the death of the relevant ancestor and do not include an inter vivos transfer. There is nothing in Article 40 which requires a different interpretation. For the above reasons, I would dismiss the appeal. Section 4(5) GRACO 84.Mr Lam has also dealt with section 4(5), GRACO in his written submissions. The only reason given by the Director of Lands for not granting exemption from government rent to Lot 790A is that the appellant acquired Lot 790A after 30 June 1984 and did not do so through succession in the male line. Hence, Mr Mok submitted that the only relevant provision is section 4(a)(ii) of GRACO. The respondents did not and do not now rely on section 4(5) of GRACO and made no submissions on that subsection. That being the case I express no view on section 4(5). Appeal out of time 85.As noted above, the appellant’s appeal was dismissed also on the ground that it was long out of time. 86.Because of the importance of the point raised by the appellant, and HYK’s keen interest in the outcome, we have heard submissions on the constitutionality of section 4 GRACO. Although I have come to the conclusion that the appellant is not entitled to exemption I would nevertheless give leave to appeal out of time. Appeal Dismissal 87.But, for the above reasons, I would dismiss the appeal. Additional Evidence 88.Mr Mok has applied for leave to adduce additional evidence. 89.That is opposed by the appellant. The new evidence relate mostly to governments discussions with HYK over the years relating to the exemption of the annual rent. Mr Lam queried their admissibility. I also doubt their admissibility. In any event, I have not found it necessary to rely on such evidence. So I would refuse leave. Costs 90.Mr Mok has asked for costs. The appellant merely made the point that he might wish to appeal to the Court of Final Appeal. Mr Lam submitted that in any event the appellant should not be required to pay all the costs. I agree. In the circumstances of this case, I would order that the appellant pays to the respondent 25% of the costs of the appeal. Such costs to be taxed if not agreed. Hon Cheung JA: 91.I agree with the reasons of the judgment of Tang VP. 92.I had initially considered whether the relevant provisions of the Basic Law may embrace ‘succession’ by transmission of a father’s interest during his lifetime to the son as well. However, on reflection, this interpretation would strain the meaning of the word ‘succession’ which clearly connotes passing of interest on death. It would also cause this Court to ignore the weight of the relevant Hong Kong legislations that were in existence at the time of the drafting and promulgation of the Basic Law. These legislations are relevant extrinsic materials that may be used in the interpretation of the Basic Law. They showed, especially the one covering the New Territories, only succession on death were addressed and not during a father’s lifetime. 93.Even if transmission of a father’s interest during his lifetime has always been a commonly adopted practice in the New Territories, Heung Yee Kuk has not adduced any evidence that such a practice was considered by the drafters of the Basic Law to be a mode of succession as well. Hon Yuen JA: 94.I agree with the judgment of the Vice-President.
The Appellant, in person, present. Mr Johnny Mok, SC, instructed by Department of Justice, for the 1st and 2nd Respondents. Mr Godfrey Lam, SC, as amicus curiae. Mr Wong Wang Fat Andrew, of Heung Yee Kuk New Territories. |
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