Hong Kong Case Law: Decisions & Judgments

Topic

Basic law article 40

Legal area

Court

5 Nov 2021

KWOK CHEUK KIN v. DIRECTOR OF LANDS AND OTHERS v. HEUNG YEE KUK (Interested Party)

Citation

[2021] HKCFA 38
Court

Court of Final Appeal
Case number

FACV4/2021

Article 40 of the Basic Law protects the Small House Policy as a lawful traditional right of indigenous New Territories inhabitants; 'lawful' refers to the public‑law lawfulness of the Lands Department's discretion and 'traditional' is assessed by reference to the state of affairs at the Basic Law's promulgation (April 1990); accordingly BL40 places the Policy outside the scope of general anti‑discrimination provisions and the Appellant's challenge fails.
5 Nov 2021

KWOK CHEUK KIN v. DIRECTOR OF LANDS AND OTHERS v. HEUNG YEE KUK (Interested Party)

Citation

[2021] HKCFA 38
Court

Court of Final Appeal
Case number

FACV2/2021

Basic Law Article 40 protects the Small House Policy as a lawful traditional right or interest of indigenous inhabitants of the New Territories; "lawful" refers to public law lawfulness of the administrative discretion and "traditional" is assessed by reference to the state of affairs at promulgation of the Basic Law (April 1990); BL40 operates as a specific provision that takes the policy outside the general anti-discrimination protections, and the appeal is dismissed.
5 Nov 2021

KWOK CHEUK KIN v. DIRECTOR OF LANDS AND OTHERS v. HEUNG YEE KUK (Interested Party)

Citation

[2021] HKCFA 38
Court

Court of Final Appeal
Case number

FACV3/2021

BL40 protects the Small House Policy as a lawful traditional right or interest of indigenous New Territories inhabitants as understood at the time the Basic Law was promulgated (April 1990); 'lawful' refers to public law lawfulness of administrative exercise and does not import the general anti-discrimination obligations of BL25/BOR22 to defeat BL40; therefore the male-line Small House Policy is constitutionally protected and the appeal is dismissed.
25 Jun 2021

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

Citation

[2021] HKCA 915
Court

Court of Appeal
Case number

CACV234/2019

The Court held that the judicial review met the PIL criteria and that, despite findings on standing and delay at appeal level, those defects were not plain or obvious at commencement; the PIL exception therefore applies such that there should be no order as to costs between the applicants and the respondents and no order as to costs between the applicants and the interested non-government party; the PIL exception can, in principle, apply against successful non-government entities in appropriate cases.
29 Apr 2021

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

Citation

[2021] HKCA 590
Court

Court of Appeal
Case number

CACV234/2019

The Court granted leave on Questions 1 and 3–5 because those questions are of great general or public importance warranting consideration by the Court of Final Appeal; leave on Question 2 was refused because the double proportionality argument was not pleaded or argued in the courts below and is fact‑sensitive requiring evidence that is not before the Court of Final Appeal. Costs of the leave application were ordered in the cause.
13 Jan 2021

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

Citation

[2021] HKCA 54
Court

Court of Appeal
Case number

CACV234/2019

On proper construction of BL40 in its historical and constitutional context (including coherence with BL120/BL122 and Annex III and recognition in legislation and drafting materials), the Ding Rights (including free building licences, private treaty grants and exchanges as implemented under the Small House Policy) constituted lawful traditional rights and interests of New Territories indigenous inhabitants at the time the Basic Law was drafted and are therefore constitutionally protected by BL40; consequently the Small House Policy is constitutional in its entirety and the judicial review was…

Hong Kong Case Law

KWOK CHEUK KIN v. DIRECTOR OF LANDS AND OTHERS v. HEUNG YEE KUK (Interested Party)

KWOK CHEUK KIN v. DIRECTOR OF LANDS AND OTHERS v. HEUNG YEE KUK (Interested Party)

KWOK CHEUK KIN v. DIRECTOR OF LANDS AND OTHERS v. HEUNG YEE KUK (Interested Party)

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

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

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