The exclusive right of male indigenous villagers to build three-storey homes in space-starved Hong Kong is not protected by the city’s mini-constitution, lawyers for the “king of judicial reviews” have argued in a landmark case at the top court.
But the government countered that argument was based on an incorrect interpretation of the Basic Law and maintained that the entitlement was part of “the lawful traditional rights and interests of the indigenous inhabitants” covered by the disputed provision.
On Monday, the Court of Final Appeal began hearing an unprecedented challenge on the constitutionality of the controversial small-house policy, which confers “Ding rights” only to male indigenous villagers to build homes in the New Territories.
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The two-day appeal also raises broader questions of whether a victim of a discriminatory policy like appellant Kwok Cheuk-kin, a retired civil servant known for frequently taking the government to court, has sufficient standing to challenge the government via judicial review, and if the court should still grant relief in light of the delay in instituting litigation.
The anticipated challenge, brought to the city’s top court for the first time since the British administration formulated the policy in 1972, was heard just days after Chief Executive Carrie Lam Cheng Yuet-ngor targeted housing and land supply in the final policy address of her current term, in a bid to tackle the long-standing shortage.
The Heung Yee Kuk, the rural body representing villagers’ interests, has spared no expense in hiring three senior counsel, Lord David Pannick QC, Jat Sew-tong SC, and Jin Pao SC, to defend the policy, while its chairman Kenneth Lau Ip-keung watched from the public gallery.
The director of lands is represented by Benjamin Yu SC, leading Anthony Chan.
Kwok, a serial litigant who had almost given up on the appeal until the top court considered his bankruptcy, and the public interest involved in the case, and waived the HK$4.8 million (US$616,770) he needed to pay in security for costs, was represented by Martin Lee Chu-ming SC, Jeremy Tam Chun-kit and Isabel Tam.
He had scored a partial victory in 2019 when the Court of First Instance held that private treaty grants and exchanges – involving land granted by, or exchanged with, the government – were not protected by Article 40 of the Basic Law and therefore unconstitutional.
All of the parties subsequently appealed.
Earlier this year, the Court of Appeal concluded that the policy was constitutional in its entirety: overturning the findings in respect of private treaty grants and exchanges, while upholding the third form, concerning free building licence on private land, as a traceable right.
Opening the final appeal, Lee said this was a “most unusual case because everybody in Hong Kong has an interest in the outcome”, given that the policy discriminates against more than 95 per cent of the population.
Lee noted that the Sino-British Joint Declaration stated China’s basic policy regarding Hong Kong and provided drafting instructions for the Basic Law, but did not say “whether the small-house policy shall continue”.
The counsel argued that Article 40 protected only “lawful” rights, which could not include the policy, given that the government had conceded that it was discriminatory and failed to provide any justification.
“Article 40 has got nothing to do with the small-house policy, if you look at the language,” he continued. “It’s not the end of the world, it just means they cannot enjoy the privilege any more.”
But Chief Justice Andrew Cheung Kui-nung observed that the government had for years maintained the policy was lawful and justified, on the grounds that it would improve the low standard of housing and preserve the cohesion of indigenous communities in the New Territories, until just weeks before this challenge was first heard in court.
Lee replied that the policy might have been lawful when it was first introduced – as an interim one pending comprehensive plans to build new towns – but “the world has moved on” and it had not been accorded any protection under the Basic Law.
He also questioned whether the entitlement was a traditional right in the absence of any in-depth study, since it was only characterised as an “existing right” when it was considered by the Basic Law Consultative Committee in 1986.
Yu countered that Lee’s interpretation was incorrect because it was too literal and had neglected the context that Article 40 was a unique provision intended to single out the rights and interests of a special class of individuals for protection.
As to what fell within those rights, Yu argued that the lower appellate court was right in determining this question based on what the legal system recognised as lawful and traditional when the Basic Law was promulgated in April 1990.
Otherwise, it would expose Article 40 to the uncertainty of what is meant by lawful at different times in the future of Hong Kong, Yu added.
His reply continues on Tuesday.
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