KWOK CHEUK KIN AND ANOTHER v. DIRECTOR OF LANDS AND OTHERS

KWOK CHEUK KIN AND ANOTHER v. DIRECTOR OF LANDS AND OTHERS

The court held that BL40 protects only those lawful traditional rights and interests traceable to rights enjoyed by indigenous inhabitants before the 1898 New Territories Lease; Free Building Licence (conversion of Old Schedule agricultural lots to village houses at nil premium) is such a lawful traditional right and is protected by BL40, whereas Private Treaty Grant and Exchange are not traceable to pre-1898 traditional rights and thus are not protected; accordingly the Small House Policy is constitutional and lawful only insofar as it confers Free Building Licence benefits, but unlawful in so far as it confers Private Treaty Grants or Exchanges.

Citation
[2019] HKCFI 867
Parties
1st Applicant: Kwok Cheuk Kin; 2nd Applicant: Lui Chi Hang, Hendrick; 1st Respondent: Director of Lands; 2nd Respondent: Chief Executive in Council; 3rd Respondent: Secretary for Justice; Interested Party: Heung Yee Kuk
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 April 2019
Case Number
HCAL260/2015
Procedural Posture
Judicial Review Constitutional and Administrative Law Challenge to Executive Policy / Hearing and Judgment on Leave and Substantive Issues (leave Granted; Judgment Delivered)
Outcome
Leave granted; judicial review allowed in part. Court found Free Building Licence protected by BL40 but Private Treaty Grant and Exchange are not protected; relief limited and postponed; certain late evidence refused admission; leave to amend pleadings granted.
Legal Topics
Small House Policy, Basic Law Article 40 (traditional Rights), Sex Discrimination Exemption, Equal Protection Under BL25 and BOR22, New Territories Land Tenure, Judicial Review Remedies
Source Language
EN
Constitutional Law Administrative Law Land Law Equality and Anti Discrimination Law Human Rights Small House Policy Basic Law Article 40 (traditional Rights) Sex Discrimination Exemption +3 more

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Parties

Kwok Cheuk Kin

1st Applicant

Lui Chi Hang, Hendrick

2nd Applicant

Director of Lands

1st Respondent

Chief Executive in Council

2nd Respondent

Secretary for Justice

3rd Respondent

Heung Yee Kuk

Interested Party

Procedural Posture

Judicial Review Constitutional and Administrative Law Challenge to Executive Policy / Hearing and Judgment on Leave and Substantive Issues (leave Granted; Judgment Delivered)

Legal Issues

  1. 1 Whether the Small House Policy unlawfully discriminates by birth/social origin and sex contrary to BL25/39 and BOR22
  2. 2 Whether benefits under the Small House Policy constitute "lawful traditional rights and interests of the indigenous inhabitants of the New Territories" within BL40
  3. 3 Whether Free Building Licence, Private Treaty Grant and Exchange are protected by BL40

Ratio Decidendi

The court held that BL40 protects only those lawful traditional rights and interests traceable to rights enjoyed by indigenous inhabitants before the 1898 New Territories Lease; Free Building Licence (conversion of Old Schedule agricultural lots to village houses at nil premium) is such a lawful traditional right and is protected by BL40, whereas Private Treaty Grant and Exchange are not traceable to pre-1898 traditional rights and thus are not protected; accordingly the Small House Policy is constitutional and lawful only insofar as it confers Free Building Licence benefits, but unlawful in so far as it confers Private Treaty Grants or Exchanges.

Court Disposition

Leave granted; judicial review allowed in part. Court found Free Building Licence protected by BL40 but Private Treaty Grant and Exchange are not protected; relief limited and postponed; certain late evidence refused admission; leave to amend pleadings granted.

Orders

  • Grant leave to applicants to re-amend Form 86 as per draft received 27 December 2018
  • Dismiss summons by Kwok dated 14 November 2018 seeking leave to file late affirmation (7th affirmation)