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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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IN THE MATTER of an Application by Mr Kwok Cheuk Kin and Mr Lui Chi Hang Hendrick for Leave to Apply for Judicial Review under Order 53 rule 3(2) of the Rules of the High Court (Cap 4A) |
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IN THE MATTER of the Articles 7, 11, 25 and 39 of the Basic Law |
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IN THE MATTER of the policy implemented by the Director of Lands known as the “Small House Policy” |
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IN THE MATTER of Schedule 5, Part 2, Paragraph 2 of the Sex Discrimination Ordinance, Cap 480 |
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| BETWEEN |
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KWOK CHEUK KIN |
1st Applicant |
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LUI CHI HANG, HENDRICK |
2nd Applicant |
and |
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DIRECTOR OF LANDS |
1st Respondent |
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CHIEF EXECUTIVE IN COUNCIL |
2nd Respondent |
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SECRETARY FOR JUSTICE |
3rd Respondent |
| and |
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HEUNG YEE KUK |
Interested Party |
________________________
| Before: |
Hon Chow J in Court |
| Dates of Hearing: |
3-7 December 2018 |
| Date of Judgment: |
8 April 2019 |
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JUDGMENT
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This Judgment shall be divided into the following Sections:
| Contents |
Paragraphs |
| I |
Introduction |
1-3 |
| II |
The Small House Policy |
4-11 |
| III |
The Purpose of the Small House Policy |
12-17 |
| IV |
The Applicants’ challenge to the Small House Policy |
18 |
| V |
The Small House Policy is prima facie unlawful by reason of its discriminatory nature or effect |
19-24 |
| VI |
Approach to interpretation of the Basic Law |
25-34 |
| VII |
Article 40 of the Basic Law |
35-40 |
| VIII |
The parties’ respective contentions |
41-43 |
| IX |
The existing case law |
44-49 |
| X |
The “traditional” (傳統) element in BL 40 |
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(i) |
The meaning of “traditional” (傳統) |
50-59 |
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(ii) |
Land tenure before the New Territories Lease |
60-66 |
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(iii) |
The New Territories Lease of 1898 and the Proclamations |
67-71 |
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(iv) |
Change of landing holding from common/customary tenure to Crown lease |
72-80 |
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(v) |
Land sale in village areas in the New Territories prior to 1972 |
81-99 |
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(vi) |
Free Building Licence |
100-114 |
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(vii) |
Private Treaty Grant and Exchange are not “traditional” (傳統) rights or interests of the New Territories indigenous inhabitants |
115-127 |
| XI |
The “lawful” (合法) element in BL 40 |
128-130 |
| XII |
BL 122 |
131-134 |
| XIII |
BL 7 |
135 |
| XIV |
Standing and delay |
136-144 |
| XV |
Disposition |
145-149 |
I. INTRODUCTION
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:
(1) references to “BL” shall be to the articles of the Basic Law, and “BOR” shall be to the articles of the Hong Kong Bill of Rights; and
(2) Heung Yee Kuk (the Interested Party), a statutory advisory and consultative body for the New Territories established under the Heung Yee Kuk Ordinance, Cap 1097, shall be referred to as the “Kuk”.
II. THE SMALL HOUSE POLICY
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]:
(1) the applicant is an indigenous villager who is a male person at least 18 years old and descended through the male line from a resident in 1898 of a recognized village;
(2) the applicant has not previously received any small house grant;
(3) the site applied for is within the “V” zone or the environs or the village extension area of a recognized village;
(4) the site applied for is not affected by any impending development, and does not prejudice any future planning or development proposals; and
(5) there are no substantiated local objections to the proposed building.
5. In respect of criterion (1) above:
(1) An “indigenous villager” is defined to mean “a male person at least 18 years old who is descended through the male line from a resident in 1898 of a recognized village”[3]. It may be noted that an indigenous villager for the purpose of the Small House Policy is different from the meaning of the same term used in other contexts, for example in the Government Rent (Assessment and Collection) Ordinance, Cap 515, which defines the expression “indigenous villager” as “a person who was in 1898 a resident of an established village in Hong Kong or who is descended through the male line from that person”.
(2) A “recognized village” is one “which is shown on the list of recognized villages approved by the Director of Lands”[4]. When that list was first drawn up in 1973, it contained 591 recognised villages. At present, there are a total of 642 recognized villages on the list, including some pre-1898 villages which have been re-sited (before or after 1945), as well as 24 post-1898 villages. These villages are found in the following districts: Islands, North, Sai Kung, Sha Tin, Tuen Mun, Tai Po, Tsuen Wan, Kwai Tsing, and Yuen Long. It may also be noted the list of “recognized villages” for the purpose of the Small House Policy is different from the list of “indigenous villages” for the purpose of the Rural Representative Election Ordinance, Cap 576.
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:
(1) The “environs of a recognized village” in general refers to a 300 ft distance surrounding a recognized village where small house applications are considered, although consideration will also be given to applications for sites within a “V” zone in a Development Permission Area/Outline Zoning Plan which encircles a recognized village[6].
(2) Pursuant to the provisions of the Town Planning Ordinance, Cap 131, planning permission will have to be obtained from the Town Planning Board under Section 16 of the Ordinance for erection of small houses outside the “V” Zones (village type development) as shown on statutory plans such as Development Permission Area Plans and Outline Zoning Plans[7].
8. A few other points stated in the said pamphlet are of note:
(1) The general guidelines and basic information set out in that document are subject to revision from time to time, and the pamphlet is not intended to create any legal rights or obligations[8].
(2) The Small House Policy is a policy approved by the Executive Council in November 1972 and has been implemented since December 1972. It is formulated to allow an indigenous villager to apply for permission to erect, once in his lifetime, a small house on a suitable site within his own village[9].
(3) Applications for small house grants on Government land from villagers living overseas will be refused unless the District Lands Officer is satisfied that the applicant intends to return and reside in his village. The District Lands Officer may, however, consider overseas applications for small house grants on private land[10].
(4) A small house is basically a building in the New Territories constructed in accordance with the provisions of the Buildings Ordinance (Application to the New Territories) Ordinance, Cap 121. The main features of a small house are that the building shall neither contain more than three storeys nor exceed a height of 8.23 metres (27 ft) and the maximum roofed-over area of the house shall not exceed 65.03 square metres (700 sq ft)[11].
(5) An application for a small house site outside the applicant’s own Heung (鄉) will not be considered, unless he can prove to the satisfaction of the District Lands Officer that...
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