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Kwok Cheuk Kin v Director of Lands: Constitutional Rights of Indigenous People in Hong Kong

By Rachelle Lam



Summary


● In the landmark decision of Kwok Cheuk Kin v Director of Lands [2019] HKCFI 867,

the Hong Kong Court of First Instance held that male indigenous villagers living the

New Territories do not enjoy the right to apply to build small houses on government

land at concessionary premium.

● However, the Court also ruled that male indigenous villagers do have the right to

apply to build homes on their own land at nil premium.

● The judgment clarified the scope of constitutional rights enjoyed indigenous people,

and was particularly controversial due to the already limited land and housing supply

in Hong Kong.

● The significant impact of this case on the public interest means that an appeal is

likely.



Introduction


In Kwok Cheuk Kin v Director of Lands, the Hong Kong Court of First Instance ruled that

Private Treaty Grants and Land Exchanges under the Small House Policy were

unconstitutional. Consequently, male indigenous villagers no longer have the right to apply

for permission to build houses on government land at concessionary premium [1]. On the

other hand, the rights of the indigenous people in the form of Free Building Licences were

upheld as lawful and traditional rights protected under Article 40 of the Basic Law [2].

The judgment has profound ramifications for constitutional interpretation and the refinement

of the scope of indigenous rights.


Background


The Small House Policy (“SHP”) [3] confers upon male indigenous inhabitants of the New

Territories (“NTIIs”) [4] the opportunity to apply for permission to build a small house for

himself, by way of:


i) a Free Building Licence (“FBL”), on agricultural land owned by the applicant

himself free of premium;


ii) a Private Treaty Grant (“PTG”), on government land at concessionary premium;


or


iii) a Land Exchange, free of premium for the private land portion and at

concessionary premium for the government land portion.

The applicants argued that:


1. The SHP did not constitute “lawful traditional rights and interests of the indigenous inhabitants of the New Territories” within the meaning of Article 40 of the Basic Law (“BL40”); and


2. The SHP was unconstitutional because it discriminated against non-indigenous people and female indigenous villagers, in contravention of Articles 25 (“BL25”) and 39 (“BL39”) of the Basic Law, and Article 22 of s.8 of the Bill of Rights (“BOR22”).


Decision


Discriminatory nature

Anderson Chow J found that the SHP was prima facie unlawful by reason of its discriminatory nature, as it gave preferential treatment to NTIIs based on social origin and sex. Neither the respondent nor the interested party attempted to justify such preferential treatment.


The crucial question then, was whether the Small House Policy could be rendered lawful by BL40. This in turn depended on whether the Small House Policy could satisfy the “traditional” and “lawful” elements in BL40 [5].


“Traditional”

According to the court, establishing the meaning of “traditional” required an examination of the context and purpose of BL40 to ascertain the legislative intent [6]. The context of BL40 was that, during the drafting process, it was believed that there were some existing rights based on customary practices enjoyed by NTIIs only. These rights had been in practice at the time of the 1898 New Territories Lease and were still being practised during the drafting of the Basic Law [7]. Accordingly, the court accepted the government’s submission that the “traditional” element referred to rights and interests of NTIIs traceable to before the commencement of the New Territories Lease in 1898. The right would be “traceable” if it captured or reproduced the essential features of a right that was enjoyed by NTIIs before 1898 [8].

The court held that the rights and interests in the form of FBL were “traceable” to the NTIIs’ “traditional” rights and interests, because that form of land grant, which was initiated by the British colonial government in 1906, had been made on the understanding that prior to the New Territories Lease, NTIIs were entitled to build houses on their land without having to make any payment to the Imperial authorities during the Qing dynasty. Although the details of FBL may have evolved over time (such as the type and size of the house and alienation restrictions), this does not detract from the original basis on which free conversion of agricultural land into building land was permitted by the British government [9].


On the other hand, the court did not consider the rights and interests in the form of PTG or Land Exchange to be “traceable” to any “traditional” right. Having examined the expert evidence, the court concluded that grants of land made by the British colonial government to NTIIs since 1904 were not made in recognition of the existence of any right of NTIIs to acquire land to build houses before 1898. For example, closed village auctions (where auctions of village land was effectively restricted to participation by the villagers) were used by the District Officers as a device to avoid practical difficulties arising from outsiders intruding into the community of a village [10].


“Lawful”

The “purpose” of BL40 is to protect those existing rights and interests enjoyed by the New Territories indigenous inhabitants which may properly be regarded as their “traditional rights and interests” after 1 July 1997 [11] in accordance with the theme of continuity of the Basic Law [12]. Thus, it would not be consistent with the purpose of BL40 to allow the rights which could be regarded as “traditional” to be challenged on the ground of discrimination, since it was clear to everyone at the time of drafting that some rights might be open to objection on the ground that they were discriminatory [13]. Therefore, the court concluded that “lawful” in the present context was merely descriptive of the traditional rights and interests enjoyed by NTIIs, and did not constitute an additional, independent criterion which had to be fulfilled in order to gain protection under BL40 [14].


Comment


At present, there are 642 officially recognised villages in Hong Kong [15], and 43,000 small houses have been built under the SHP. The ruling means that male indigenous villagers will only be able to apply for permission to build a home on his own land at nil premium. However, if he does not own agricultural land, he can no longer apply to build on government land on concessionary terms. Moreover, even if he owns a plot of land but it is of insufficient size, he can no longer surrender his land in exchange for government land on which to construct his house on concessionary terms. Due to the significant consequences of the case for both indigenous and non-indigenous people, it is likely that an appeal will be brought in Hong Kong Court of Final Appeal.

Author

Rachelle Lam is an LLM Candidate at University of Cambridge, having recently completed her undergraduate studies in Law with First Class Honours, also at Cambridge. Her areas of interest include Public Law and Commercial Law.

References

[1] The Hong Kong government owns all the land in Hong Kong. Under the current land administration policy, where a conversion of land use results in an increase in land value, the developer is liable to pay a premium to the government: Financial Times. “Hong Kong’s Land System that Time Forgot”. Ireland: David Pilling. 10 March 2011. Available from: https://www.ft.com/content/2731d5f0-4a87-11e0-82ab-00144feab49a

[2] The Basic Law is Hong Kong’s “mini constitution”: BBC. “Hong Kong: What is the Basic Law and how does it work?”. 20 November 2019. Available from: https://www.bbc.co.uk/news/world-asia-china-49633862

[3] The Small House Policy is a policy created by the British colonial government in 1972 to remedy the low housing standards of indigenous residents of the New Territories: Carole J. Peterson. “Equality as a Human Right: The Development of Anti-Discrimination Law in Hong Kong”. Hong Kong. 1996. https://core.ac.uk/download/pdf/32299653.pdf. Accessed 1 October 2020.

[4] The New Territories is one of the three main regions in Hong Kong, and makes up 88.5% Hong Kong’s territory: Hong Kong Census and Statistics Department. “Geography and Climate”. Hong Kong. 2010. https://www.censtatd.gov.hk/FileManager/EN/Content_810/geog.pdf. Accessed 1 October 2020.

[5] Judgment [22], [24]. Available from: https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=121196&QS=%2B&TP=JU&ILAN=en

[6] Judgment [26]

[7] Judgment [51]

[8] Judgment [55], [115]

[9] Judgment [116]

[10] Judgment [96]

[11] Hong Kong was handed over by Britain to China on 1 July 1997: BBC. “Hong Kong’s handover: how the UK returned it to China”. Hong Kong. 29 June 2017. https://www.bbc.com/news/world-asia-china-40426827. Accessed 1 October 2020.

[12] Judgment [54]

[13] Judgment [128]

[14] Judgment [129]

[15] Hong Kong Lands Department. “List of Recognized Villages under the New Territories Small House Policy”. Hong Kong. 2009. https://www.landsd.gov.hk/en/images/doc/rv0909_text.pdf. Accessed 1 October 2020.





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