ADMINISTRATIVE & PUBLIC LAW – Court of Appeal hears arguments in Small House Policy judicial review appeal
Jeffrey Tam and Isabel Tam appeared as junior counsel on behalf of the 1st and 2nd Applicants in Kwok Cheuk Kin and Another v. Director of Lands and Others (CACV 234/2019, CACV 317/2019 and CACV 319/2019), where all parties including the Government and Heung Yee Kuk appealed against the Court of First Instance’s ruling on the constitutionality of the Small House Policy.
The Small House Policy allows male indigenous villagers of the New Territories the privilege of building small houses without paying a land premium. The 1st and 2nd Applicants’ judicial review application challenged the constitutionality of the Small House Policy on the grounds that, among others, it discriminates against persons of “non-indigenous” descent, and also discriminates against females, in contravention of Articles 25 and 39 of the Basic Law and/or Article 22 in the Bill of Rights.
At the Court of First Instance, the Honourable Mr. Justice Chow affirmed the constitutionality of one aspect of the Small House Policy, being the issuance of “Free Building Licence”, which enables male indigenous villagers to build small houses on their own agricultural land and which is one of three forms of land grants under the Small House Policy. However, he held that the issuance of “Private Treaty Grant” and “Land Exchange” – two of three forms of land grants under the Small House Policy – are unconstitutional as they are not a lawful traditional right and interest of the indigenous inhabitants of the New Territories within the meaning of Article 40 of the Basic Law.
The Court of Appeal heard submissions from Counsel on, among others, the following questions:
• Given that the privileges given to male indigenous inhabitants of the New Territories under the Small House Policy are discriminatory (being differential treatment on the basis of sex and social origin which is not justifiable – a point not disputed by the Government), on the proper construction of Article 40 of the Basic Law, are those privileges nonetheless protected as a “lawful and traditional” right and interest?
• What is meant by the words “lawful” and “traditional” in Article 40 of the Basic Law?
• If the Small House Policy is said to be traditional, what is the essence of the corresponding rights and interests of New Territories indigenous inhabitants enjoyed in 1898 that the Government say the Small House Policy captures to qualify them as traditional rights and interests under Article 40 of the Basic Law?
• Does the discriminatory nature of the Small House Policy mean that the privileges under them cannot be “lawful” within the meaning of Article 40 of the Basic Law?
This case is highly significant not only for the questions of great constitutional importance it raises, but also for its impact on small house building applications. As a result of the High Court ruling, which took effect on 8 October 2019, the Lands Department has suspended the processing of applications already received and new applications for small house grants under “Private Treaty Grant” and “Land Exchange” involving government land, pending the results of the appeal. Currently, around a third of existing small houses are built on public lots.
The Court of Appeal has reserved judgment.
Jeffrey Tam and Isabel Tam acted for the 1st and 2nd Applicants (led by Mr. Martin Lee SC).
 The scope of the ruling regarding “Land Exchange”, in particular whether it is limited to those involving government land only, arose as a matter of contention before the Court of Appeal