The small house policy has always been controversial. Kwok Cheuk Kin, known as the Cheung Chau Review King, filed a judicial review of this policy and won a partial victory in the trial of the Court of First Instance. The court ruled in the form of "Private Agreement" and "Land Exchange" Building a small house is unconstitutional.
However, the government refused to accept it and lodged an appeal. The Court of Appeal ruled that the "Private Agreement" is also a traditional right and is protected by the Basic Law.
Guo refused to accept the ruling and filed a final appeal to the Court of Final Appeal earlier, saying that the small house policy only benefits men, is discriminatory and violates the principle of equality for all under the Basic Law.
The government claims that legality does not mean that there is no discrimination. The Heung Yee Kuk also emphasized that the 40 Articles of the Basic Law that protect traditional legal rights and interests are meant to provide constitutional protection for the small house policy.
After hearing the submissions from all parties earlier, the judge of the final court issued a resignation today (5th). Guaranteed and ruled that Guo Zhuojian lost the case.
The principle of anti-discrimination can be excluded on this special issue
In his judgment, the judge of the final court pointed out that in Article 40 of the Basic Law, the term "legal" refers to the Lands Department's discretion to approve small houses.
If this discretion is legally exercised, the applicant's related rights and interests under the small house policy are legal.
The CFA also pointed out that the term "lawful" does not mean that the discrimination prohibited by Article 25 and Article 39 of the Basic Law does not exist.
The application of the relevant anti-discrimination provisions on the special issue of the rights of indigenous inhabitants is excluded by Article 40 of the Basic Law.
Private treaty grants and land exchanges are also constitutional
At the same time, it also believes that the Court of Appeal correctly ruled that the meaning of the term "tradition" in Article 40 of the Basic Law should be determined with reference to the situation when the Basic Law was promulgated in April 1990, and does not need to be traced back to before 1898 (the British lease of the New Territories).
That is to say, the ruling of the Court of Appeal is upheld that the "private agreement granting of land" and "land exchange" methods are also constitutional.
In the lawsuit reviewed by Ding Quan, Guo Zhuojian was ruled to partly win the case in the Court of First Instance.
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The appellant Guo Zhuojian, the respondent was the Director of Lands Department, the Chief Executive in Council and the Secretary for Justice, and the Heung Yee Kuk was listed as an interested party.
The appeal court ruling private agreement is also a traditional legal right
A judge of the High Court ruled that it is constitutional for the indigenous residents to build small houses with a "free building license" on the land they own, but the "private agreement granting of land" and "land exchange" methods have no traceable history and are not part of the Basic Law. Traditional legal rights guaranteed by Article 40.
However, the Court of Appeal held that the "legitimate traditional rights and interests" referred to in Article 40 refers to the "legitimate traditional rights and interests" recognized when the Basic Law was promulgated in 1990. It also refers to the traceable history of private agreements and land exchanges. , And ruled that the "Private Agreement Grant" and "Land Exchange" methods are also constitutional.
Policy violates the principle of equality for all
Senior Counsel Li Martin who represented Guo stated earlier that Article 25 of the Basic Law stipulates that all Hong Kong residents are equal before the law, while Article 39 of the Basic Law stipulates that the International Covenant on Civil and Political Rights Applicable to Hong Kong, the provisions of the Convention emphasize that the law prohibits any discrimination.
However, in the small house policy, only men enjoy rights, which is discriminatory and illegal.
Li also pointed out that the traditional rights and interests should be traced back to the rights and interests enjoyed when Britain leased the New Territories in 1898. At that time, it was not specified that D's rights belonged to the traditional rights and interests of the indigenous inhabitants.
When the Basic Law was drafted, the committee did not define the small house policy as a "traditional right".
The government claims that rights belong to traditional rights
Senior Counsel Yu Ruohai, who represents the government, responded that whether rights and interests are "traditional" should depend on when they were promulgated in 1990, when Ding Quan was regarded as a traditional right.
Yu also pointed out that even if we have to go back to history, when renting in the New Territories in the United Kingdom, only men can build houses. It is unusual for women and non-villagers to obtain land to build houses.
Yu emphasized that the small house policy is legal, and legality does not mean that there is no discrimination.
The original intent of Article 40 was to protect the small house policy
The British Queen’s Barrister Peng Like, who represents the Heung Yee Kuk, pointed out that the “legal” in Article 40 of the Basic Law should depend on the rights and interests recognized by law when the Basic Law was promulgated in 1990. The small house policy was obtained at that time. One of the recognized rights.
Peng Like also pointed out that the Basic Law emphasizes continuity to ensure that the rights and interests enjoyed by Hong Kong people before the Basic Law comes into force will also be protected after it becomes effective, and Article 40 also extends relevant legal rights and interests.
The drafting document also shows that the original intent of Article 40 was to provide constitutional protection for the small house policy to be challenged in the future.
The committee has also considered the history of the British lease of the New Territories.
Case number: FACV2, 3, 4/2021
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