Administrative and Constitutional Law — Court of Final Appeal hears judicial review appeal on constitutionality of Small House Policy
One of the issues before the Court of Final Appeal is whether the right to build small houses, enjoyed by New Territories male indigenous inhabitants, constitutes a “lawful traditional right and interest” protected by Article 40 of the Basic Law.
Kwok Cheuk Kin v Director of Lands and Others v Heung Yee Kuk (Interested Party)
|FACV 2/2021  HKCFA 38
|Court of Final Appeal
|Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Chan NPJ and Lord Sumption NPJ
|Date of Decision:
|5 November 2021
|Jeffrey Tam and Isabel Tam (led by Mr. Martin Lee SC), instructed by Ho Tse Wai & Partners, acted for the 1st Appellant/Applicant in FACV Nos. 2, 3 & 4 of 2021. As junior counsel, they also represented the 1st and 2nd Applicants in the Court of Appeal (CACV 234/2019, CACV 317/2019 and CACV 319/2019;  1 HKLRD 737) and the Court of First Instance (HCAL 260/2015;  1 HKLRD 988).
The judicial review challenge against the Small House Policy reached a final conclusion on 5 November 2021, when the Court of Final Appeal delivered its judgment. This commentary summarises the background and issues for the Court’s determination.
Background to the Appeal
Under the Small House Policy, male indigenous villagers of the New Territories may apply for permission to build, for once in his lifetime, a small house on a suitable site within his own village. They are not required to pay a land premium.
Currently, such rights and interests under the Small House Policy (“Ding Rights”) take three forms of land grants: (1) Private Treat Grants; (2) Free Building Licences; and (3) Land Exchanges.
By way of judicial review, the 1st and 2nd Appellants challenged the constitutionality of the Small House Policy on the ground that it is discriminatory on the basis of sex, birth, or social origin. All parties agreed, and the Judge held, that the Small House Policy is prima facie discriminatory.
The outstanding issue to be decided is whether Ding Rights are protected under Article 40 of the Basic Law (“BL 40”), which provides:
“The lawful traditional rights and interests of the indigenous inhabitants of the “New Territories’ shall be protected by the Hong Kong Special Administrative Region.”
Ruling of the Court of First Instance
The Honourable Mr. Justice Chow declared the Small House Policy unconstitutional so far as it relates to Private Treaty Grants and Land Exchanges, since they are not “traditional” rights and interests within the meaning of BL40.
The Judge held that “traditional” rights and interests are those which are traceable to the rights and interests enjoyed by New Territories indigenous inhabitants before the New Territories lease commenced in 1898. The judge furthermore held that “lawful” in BL40 is “merely descriptive” of those traditional rights and interests which were enjoyed.
All parties appealed against the Judge’s decision.
Ruling of the Court of Appeal
On appeal, the Court of Appeal ruled that the entire Small House Policy is constitutional, and held that a right or interest is “traditional” for the purpose of BL 40 if it was recognised as such by the Basic Law’s drafters when the constitution was promulgated on 4 April 1990.
The Court of Appeal held that at the time of drafting, Ding Rights were recognised as “traditional” in that they originated from and retained the essence of the indigenous inhabitants’ pre-1898 customs to build a house to live on their own land, and furthermore that such rights were recognized as “lawful”.
Accordingly, the Court of Appeal dismissed the 1st and 2nd Applicants’ appeal and allowed the cross-appeals of the Respondents and the Interested Party. In any event, Court of Appeal would have refused to grant any relief since the Applicants – who had no intention of applying to build a small house – lacked standing to seek judicial review, and there was a lengthy and unexplained delay in bringing the claim.
Despite this outcome, the Court of Appeal made no order as to costs since the case raises “novel issues” and comes within the public interest litigation exception. Even more significantly, the exception was held to apply not only against the Respondent, but also for the first time in Hong Kong to the interested party.
Issues for the Court of Final Appeal’s determination
The 1st Applicant/Appellant’s appeal was heard by the Court of Final Appeal on 10, 11 and 12 October and centered on the following questions:
1. Is the right of a male New Territories indigenous inhabitant to apply to build one small house in his lifetime in a recognised village under the Small House Policy formulated by the British Administration in 1972 a lawful traditional right or interest within the meaning of BL 40?
2. Does a person who is a victim of a discriminatory government policy have sufficient standing to challenge that policy by way of judicial review?
3. Where a government policy is an ongoing one and is held to unconstitutional, should the court refuse relief on the ground of delay?
4. In a judicial review of an administrative policy, where the declaratory relief sought is limited to prospective relief only, is the court entitled to refuse such prospective relief on the ground of hardship, prejudice or detriment to good administration?
The Court of Final Appeal will deliver its judgment on 5 November 2021.
Since being called in 2009, Jeffrey has established a solid practice in public law, having been involved in a number of landmark judicial review cases. Recently, in Tung Kin Lei Kelly v Ng Ting Lam and Others  HKCFI 514, Jeffrey (with Abigail Liu) successfully resisted an election petition in the first ever case in Hong Kong’s judicial history where the Courts interpreted a fundamental provision in the District Councils Ordinance (Cap. 547). He appeared successfully for the Applicant in Tam Hoi Pong v Town Planning Board  HKCFI 2265, which challenged the Board’s decision on funding arrangements in relation to a development site.
Isabel is a Bar Scholar who was called to the Bar in 2013. Her practice has an emphasis on public law, family law, commercial law, regulatory matters, and building management. In addition to the judicial review of the Small House Policy, her experience in public law includes matters related to the “Co-location Arrangement” (郭卓堅 v 林鄭月娥特首連同行政會議成員, HCAL 1178/2018; CACV 8/2019), the 3rd airport runway, immigration decisions, disciplinary decisions, and administrative tribunals. She also acted for the Respondent in the landmark case of AA v. BB  HKCFI 1401, where the Court of First Instance granted guardianship and joint custody to the non-biological parent within a same-sex relationship.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.