LAU WONG FAT v. ATTORNEY GENERAL

1994, No.A6016

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H E A D N O T E

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The Plaintiff commenced action to challenge the constitutionality of the New Territories Land (Exemption) Ordinance ("the Exemption Ordinance").

HELD :

(1) Action struck out on the ground that the challenge is based on public law and should proceed by way of judicial review.

(2) The Plaintiff has an arguable case that the Exemption Ordinance infringes provisions of the Bill of Rights and an arguable case on locus standi in seeking declaratory relief.

(3) The existing Hong Kong courts have no jurisdiction to interpret the Basic Law.

1994, No.A6016

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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Application

1. This is an application by the Attorney General ("AG"), who is the Defendant in this action, to strike out the writ and statement of claim of the Plaintiff.

Background

2. On 23rd June 1994, the Governor of Hong Kong gave his assent to the New Territories Land (Exemption) Ordinance ("The Exemption Ordinance") which was passed by the Legislative Council. The Exemption Ordinance is described as an ordinance to exempt certain land in the New Territories from the application of Part II of The New Territories Ordinance. Part II of the New Territories Ordinance contains provisions such as section 13 which empowers the court in proceedings relating to land in the New Territories to recognize and enforce any Chinese custom or customary right affecting such land.

3. Section 3(a) of the Exemption Ordinance exempts rural land (which is described as land in the New Territories being the subject of a Crown Lease of an old schedule lot, village lot, small house or similar holding) from Part II of the New Territories Ordinance for the purpose of entitlement to rural land in succession.

4. Section 13 of the New Territories Ordinance was also amended so that the provision for the recognition of Chinese customs would not apply to proceedings relating to the Probate and Administration Ordinance, the Intestates' Estates Ordinance or the Deceased's Family Maintenance Ordinance.

5. The effect of these changes means that from the operative date of the Exemption Ordinance, namely 24th June 1994, the recognized Chinese custom of succession to land in the New Territories by male descendants of a person who died without leaving a will was abolished. The land will be succeeded by his descendants in accordance with the Intestates' Estates Ordinance, and if there are daughters of the deceased, then they are entitled to succession as well.

6. There are other provisions in the Exemption Ordinance, but the issue of male succession to property is the central issue in this litigation.

The Plaintiff's case

7. The Plaintiff who is a well known leader in the New Territories lodged the action to challenge the validity of the Exemption Ordinance.

8. In the statement of claim, the Plaintiff referred to the Proclamation made by the then Governor, Sir Henry Blake, in 1900 to the indigenous inhabitants of the New Territories ("the indigenous inhabitants") where it was promised that "Your commercial and landed interest will be safeguarded and your usages and good customs will not in any way be interfered with." This proclamation was made shortly after the Second Convention of Peking signed on 9th June 1898 when the New Territories were leased by the Imperial Tsing China to Great Britain.

9. The pleading went on to deal with subsequent government conducts which reassured to the indigenous inhabitants that the Hong Kong Government would continue to honour its promises and assurances. It then pleaded that the Government repudiated from its assurances and promises and officially switched its stand from that of preserving the usages and customs of the indigenous inhabitants to that of supporting amendments to the New Territories Ordinance which would destroy such usage and customs. The Exemption Ordinance originally envisaged exemptions only in respect of non-rural land in the New Territories.

10. Paragraph 21 of the statement of claim pleaded that the Government has been in wrongful repudiation of its assurances and promises, as well as infringement of the fundamental human rights and legitimate expectations of the indigenous inhabitants to have their usage or custom of male lineage succession continued in the New Territories.

11. Mr Chow, Counsel for the Plaintiff, informed the Court that the Plaintiff's challenge to the Exemption Ordinance is in respect of section 3(a) and section 10. The challenge is that these sections are contrary to the provisions of the Letters Patent and the Basic Law. Specifically in respect of the Letters Patent, the Plaintiff said that sections 3 and 10 of the Exemption Ordinance infringe Article VII(5), which entrenches the provisions of the International Covenant on Civil and Political Rights ("ICCPR") and which provides that :

"No law of Hong Kong shall be made after the coming into operation of the Hong Kong Letters Patent 1991(No.2) that restricts the rights and freedoms enjoined in Hong Kong in a manner which is inconsistent with the Covenant as applied to Hong Kong."

Judicial Review and public law litigation

12. Mr Mok, counsel for the AG, submitted that the matters raised by the Plaintiff are matters of public law and it is a misuse of procedure to canvass these matters by means of a writ in a private law action. He submitted that there is no pleading in the statement of claim on any private law right or cause of action. There is no allegation of breach of contract, any tortious act or any estoppel enforceable in private law.

13. Although Mr Chow submitted that such materials were contained in the pleadings, it is clear that the Plaintiff's challenge is on the constitutionality of the Exemption Ordinance. This is a matter that falls squarely within the public law domain. The House of Lords in O'Reilly v. Mackman [1983] 2 AC 237 has stated clearly that :

"... as a general rule it would be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringe rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of O.53 for the protection of such authorities." (per Lord Diplock at page 285)

14. This is repeated in Cocks v. Thanet District Council [1983] 2 AC 286, a decision of the House of Lords delivered on the same day of O'Reilly.

The Plaintiff's stand

15. Mr Chow submitted that the AG has not been consistent in his approach. In Lee Miu Ling v. The Attorney General (1994, MP No.1696), which concerns a challenge on the provisions of the Legislative Council (Electoral Provisions) Ordinance, the plaintiff had chosen to seek the declaratory relief by way of originating summons and the AG had not objected to this mode of application. (See the decision of Keith J. of 28th March 1995). He also submitted that the AG only raised this particular objection at a late stage of the proceedings. He referred to the works by Sir William Wade in Administrative Law, 7th Edition, pages 680 to 695 and John F. McEldowney in Public Law which criticized the approach of the House of Lords. The gist of Sir William Wade's criticism is that to insist all public law litigation to be conducted by judicial review under Order 53 is a regression : it emphasised form over substance. The other author referred to the imprecision of the term "public law". Mr Chow also argued that the challenge is not on an administrative act but rather on a primary legislation.

Lee Miu Ling

16. The Lee Miu Ling decision was taken to the Court of Appeal (Civil Appeal No.145 of 1995). Litton V.P. at page 17 of the judgment stated that :

"The plaintiff's case, in essence, although it was never formulated as such, was that the Governor had acted unconstitutionally in making that law (with the advice and consent of the Legislative Council). I have no doubt that the only proper proceeding was by judicial review, as the judge himself was inclined to think, until he was persuaded otherwise."

17. He also observed that "if there ever was a matter in the public law domain, it would be a constitutional challenge of this kind."

Not a matter of form over substance

18. The challenge of the Plaintiff is that the provisions of the Exemption Ordinance are inconsistent with the Letters Patent. It is a challenge on the constitutionality of the Exemption Ordinance. This must be a public law challenge.

19. With respect to Sir William Wade, the insistence to conduct public law litigation by judicial review is not a case of simply putting form over substance because the procedure under Order 53 contains important safeguard against groundless or unmeritorious claims. Lord Diplock at page 280 of O'Reilly referred to the requirement of applying for leave and the affidavit verifying the facts relied on. He said :

"... so that a knowingly false statement of fact would amount to the criminal offence of perjury. Such affidavit was also required to satisfy the requirement of uberrima fides, with the consequence that failure to make on oath a full and candid disclosure of material facts was of itself a ground for refusing the relief sought in the substantive application for which leave had been obtained on the strength of the affidavit. This was an important safeguard, which is preserved in the new Order 53 of 1997. The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision. In contrast, allegations made in a statement of claim or an indorsement of an originating summons are not on oath, ..."

20. At page 284, he continued :

"So to delay the judge's decision as to how to exercise his discretion would defeat the public policy that underlies the grant of those protections : viz., the need, in the interests of good administration and of third parties who may be indirectly affected by the decision, for speedy certainty as to whether it has the effect of a decision that is valid in public law. An action for a declaration or injunction need not be commenced until the very end of the limitation period; if begun by writ, discovery and interlocutory proceedings may be prolonged and the plaintiffs are not required to support their allegations by evidence on oath until the actual trial. The period of uncertainty as to the validity of a decision that has been challenged upon allegations that may eventually turn out to be baseless and unsupported by evidence on oath, may thus be strung out for a very lengthy period, as the actions of the first three appellants in the instant appeals show. Unless such an action can be struck out summarily at the outset as an abuse of the process of the court the whole purpose of the public policy to which the change in Order 53 was directed would be defeated."

Delay

21. Mr Chow complained that the Plaintiff has been prejudiced because application for judicial review is required to be lodged within three months of the decision sought to be challenged. The AG only chose to raise this objection nearly two and a half years after the legislation had come into effect and if the action is dismissed on this procedural ground, the Plaintiff would be out of time in applying for a judicial review. He also referred to O.2 r.2 of the Rules of the Supreme Court and submitted that any application to set aside the proceedings on the ground of irregularity shall not be allowed unless it is made within a reasonable time.

22. By way of chronology the writ of summons was issued on 21st June 1994. The statement of claim was filed on 12th October 1994. The AG issued the summons to strike out the pleading on 28th December 1994. The hearing of the summons was originally scheduled in May 1995 but was adjourned by agreement of the parties in order to accommodate Plaintiff's Counsel. The matter was restored for hearing on 14th September 1995 when it was again adjourned because of late service of the AG's written submission and authorities on the Plaintiff. In May 1996, the AG restored the summons for hearing on 30th October 1996. After a short adjournment due again to the request for time by the Plaintiff to consider the new submissions and authorities of Mr Mok, who was only recently instructed to appear in this matter, the arguments proceeded on 6th November 1996. This particular objection was first raised in a letter of 24th October 1996.

23. It is clear from the submission of Mr Chow that the decision to proceed by way of an action was considered before the action was lodged. He said that one reason being that evidence may be required to be called to prove the customs and usage in the New Territories, although he also submitted that the law was in a state of flux and had the AG raised this objection earlier, the Plaintiff may have adopted a different approach.

24. The Court of Appeal decision in Lee Mui Ling was delivered at the end of November 1995. No step was taken in respect of the action between that time and the hearing of the striking out application. While a party may be excused from raising this particular objection before the Court of Appeal decided on this matter, one would have thought that this point should be raised immediately thereafter. This was not done. However, notwithstanding the delay in taking this point, I am of the view that the action should be dismissed at this stage. Nearly two and a half years after the commencement of the action, the court is still dealing with an application to strike out the pleadings. The test in striking out applications is that it is only in plain and obvious cases that the pleadings would be struck out. Once the Plaintiff has satisfied the threshold test, he is then allowed to proceed with the action. No matter how tight a time table the Court may impose for the future conduct of the case, there is no guarantee that the case would not be swallowed in a sea of interlocutory applications which the parties are entitled to pursue. In the mean time, the fate of an important legislation such as the Exemption Ordinance, will have to be suspended until such time as the parties are ready for trial. Public interest requires a speedy determination of this issue and to allow the present action to continue, particularly in the light of the authorities which are binding on me, would defeat the purpose of Order 53. I will therefore strike out the writ and the statement of claim on the basis that it is an abuse of the process to proceed by way of action and not judicial review.

Extension of time in Judicial Review

25. Under O.53 r.4, the court has jurisdiction to extend time in an application for judicial review. Mr Mok invited me to reserve this case to myself in the event that the Plaintiff choose to apply for judicial review. I do not think this is necessary. How the discretion should be exercised as to the extension of time would be a matter entirely for the judge in charge of the judicial review application. The steps that have been taken in this case are fully set out in this judgment.

Letters Patent

26. Mr Mok also applied to strike out the Plaintiff's claim on its merits. As the Exemption Ordinance was enacted subsequent to the Bill of Rights, the challenge on its constitutionality is that it infringes the ICCPR as applied to Hong Kong and entrenched by the Letters Patent.

27. As the Bill of Rights embodies those part of ICCPR as applied to Hong Kong, I will, for the ease of reference, refer to the Bill of Rights. The Plaintiff relied on three articles of the Bill of Rights, namely, Article 15 - Freedom of thought, conscientious and religion, Article 19 - Rights in respect of marriage and family, and Article 23 - Rights of minorities.

28. As shown in the speech of the Secretary for Home Affairs when he introduced the Exemption Ordinance in its bill form, the intention is to provide for an equal opportunity for women to succeed to land or property in the New Territories if the owner dies intestate. The intent of the Exemption Ordinance is to ensure equality of treatment between the men and women in respect of their father's property in the New Territories.

29. At first glance, to argue that the Exemption Ordinance infringes the provisions of the Bill of Rights, the overriding aim of which is to ensure, inter alia, equality of treatment between man and woman, is to put the Bill of Rights on its head. However, I am satisfied that the Plaintiff's arguments ? that he also has rights recognized by the Bill of Rights and that they have been infringed by the Exemption Ordinance - are matters that merit full argument and the action should not be dismissed on the ground that it discloses no reasonable causes of action or on the other grounds relied upon by the AG.

Article 23

30. Article 23 is as follows :

Rights of minorities

Persons belonging to ethnic, religious or linguistic minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

Ethnic minority

31. Mr Chow argued that the indigenous inhabitants of the New Territories are ethnic minorities whose right to enjoy their own cultural are recognized by Article 23. In Mandla (Sewa Singh) v. Dowell Lee [1983] 2 AC 548, the House of Lords considered the term "ethnic origins" in the context of the Race Relations Act 1976. Lord Fraser of Tullybelton at p.562 stated that the word "ethnic" retains a racial flavour but it is used nowadays in an extended sense to include other characteristics which may be commonly thought of as being associated with common racial origin. He stated that :

" For a group to constitute an ethnic group in the sense of the Act of 1976, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these : (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups."

The earlier stand of the Government

32. In a document entitled "Review of legislation in the light of the Bill of Rights" dated August 1992 submitted by the Constitutional Affairs Branch to the Omelco Constitutional Development Committee, reference was made to the New Territories Ordinance and the document stated that : "The Administration does not agree that the legislation is discriminatory in nature. N.T. people are a distinct minority and their culture/customs may justify laws and practices which might otherwise be regarded as discriminatory. See relevant part of CS' speech in moving the Second Reading of the BOR Bill on 25 July 1990. Nevertheless, the Ordinance is currently under review to make it more relevant to the present-day needs."

Arguable case on infringement

33. The document, of course, only reflected the stand of the Government in 1992. However, the relevant consideration is that it recognized the indigenous inhabitants in the New Territories as a distinct minority and certainly they share two essential characteristics, namely they have a long shared history of which they are conscious as distinguishing them from other groups and secondly, a cultural tradition of their own, including family and social customs and manners.

34. The Chinese custom relating to male succession to land has its origin in the feudal past and has found no place in modern China. But this custom was preserved in Hong Kong and had been expressly recognized by the Government since the beginning of this century.

35. Mills-Owens, J. in Tang Kai Chung v. Tang Chik Shang [1970] HKLR 276 reviewed the history of the New Territories and its legislation; and in his judgment he recorded that in 1905, the New Territories Land Ordinance was passed which empowered the Land Officer to decide in a summary way all questions and disputes affecting land and the Land Officer should "have power to recognize and enforce any Chinese custom or customary rights in relation to land". Under section 10, it was also provided that the Supreme Court should "have power to recognize and enforce any Chinese custom or customary rights." These provisions are identical to the provisions in section 13 of the New Territories Ordinance which came into effect on 28th October 1910.

36. Mr Mok submitted that land can still be kept in the male line by the making of a will. This, of course, can be done. But it does not mean the right has not been infringed. I think it would go too far if the Court is to hold that the Plaintiff does not even have an arguable case in a striking out application, that his right in relation to this Chinese custom has been infringed by the Exemption Ordinance which abolished the custom relating to male succession to land where no will is made.

37. Mr Mok argued that even if the right was infringed, the infringement satisfied the proportionality test and can be justified. He referred to the recent Privy Council decisions of A.G. v. Lee Kwong Kut [1993] AC 951 and Ming Pao Newspapers Limited v. A.G. [1996] 3 WLR 272. If the issue is on the balance between the interest of the individual and that of the society, then obviously this is a matter that cannot be summarily dealt with in a striking out application.

Article 15

38. Article 15 provides that :

Freedom of though, conscience and religion

(1) Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

(2) No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

(3) Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

(4) The liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions shall be respected.

39. Mr Chow argued that the Chinese custom of male succession to land is tied to the practice of ancestral worship by setting aside part of the land for this purpose. He argued that ancestral worship is a form of religion. He referred to In re South Place Ethical Society [1980] 1 WLR 1565 in which the meaning of "religion" was discussed. The Oxford English Dictionary defines "religion" as "A particular system of faith and worship", "Recognition on the part of man of some higher unseen power as having control of his destiny, and as being entitled to obedience, reverence, and worship."

40. Mr Mok argued that ancestral worship is not a form of religion. Furthermore, there was no question of coercing the indigenous inhabitants which would impair their freedom to have a religion, and in any event, such freedoms are subject to limitations as prescribed by law. He further argued that land which is used for ancestral worship such as Tso land is not affected by the Exemption Ordinance. If land is required to be set aside for ancestral worship, this can be done either at the lifetime of the owner or by his male descendants irrespective of whether part of the property have devolved on the daughters as well.

Article 19

Article 19 provides that :

Rights in respect of marriage and family

(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

(2) The right of men and women of marriageable age to marry and to found a family shall be recognized.

(3) No marriage shall be entered into without the free and full consent of the intending spouses.

(4) Spouses shall have equal rights and responsibilities as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

41. Mr Chow argued that under Chinese custom, there is an obligation imposed on the male member of the family to provide for the female members. If the Chinese custom is abolished, then the tradition of the female members looking to the male for support will be broken as well.

Matters to be considered

42. It may appear to be far fetched to equate ancestor worship with religion and Mr Chow has not really explained how the Exemption Ordinance infringes the family rights provisions. However, it is not necessary for me to come to a concluded view on Articles 15 and 19 of the Bill of Rights at this hearing. The Plaintiff has, in my view, certainly raised an arguable case in respect of Article 23. Mr Mok has rightly pointed out that the reliefs sought by the Plaintiff have not referred specifically to provisions of the Exemption Ordinance which he said infringes the Bill of Rights. However, it is clear from the submission of the parties what the Plaintiff's stand is and what he intends to challenge.

Declaratory Relief

43. Mr Mok submitted that the statement of claim disclosed no or no sufficient interest on the Plaintiff's part to seek the declarations in question. The mere fact that he is an indigenous inhabitant himself is insufficient. In Gouriet v. Union of Post Office Workers and the A.G. [1978] AC 435, Lord Wilberforce at p.483 stated that :

"... there is no support in authority for the proposition that declaratory relief can be granted unless the plaintiff, in proper proceedings, in which there is a dispute between the plaintiff and the defendant concerning their legal respective rights or liabilities either asserts a legal right which is denied or threatened, or claims immunity from some claim of the defendant against him or claims that the defendant is infringing or threatens to infringe some public right so as to inflict special damage on the plaintiff. ..."

44. Mr Mok referring to Meadows Indemnity v. I.C.I. [1829] 2 Ll.L.R.298 submitted that declarations can only be granted to declare the personal situation of the Plaintiff himself.

45. In the present case, the Chinese custom enables a person in the New Territories to leave his land to his male descendants without making a will. This arguably confers a right on him. For the purpose of the striking out application, it is arguable that the Plaintiff, being an indigenous inhabitant of the New Territories, has this legal right being denied by the Exemption Ordinance and the right that has been infringed is not only a public right, but a right personal to him and that he has an arguable case on locus standi in seeking declaratory relief.

Basic Law

46. Article 39 of the Basic Law provides, inter alia, that the provisions of the ICCPR as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region ("SAR"). Article 40 further states that :

" The lawful traditional rights and interests of the indigenous inhabitants of the 'New Territories' shall be protected by the Hong Kong Special Administrative Region."

47. Mr Chow argued that the Exemption Ordinance further infringes the provisions of these two articles of the Basic Law. Mr Mok argued that the traditional rights are not fossified at any particular stage. The rights as guaranteed by Article 40 must take into account changes in the legislation. Mr Chow, however, argued that the traditional rights are those available to the indigenous inhabitants is at the time when the Basic Law was promulgated in 1990.

Jurisdiction

48. The Basic Law will come into operation on 1st July 1997. Under Article 158, the power of interpretation of the Basic Law is vested in the Standing Committee of the National People's Congress which authorises the courts of the SAR to interpret on their own, in adjudicating cases, the provisions of the Basic Law which are within the limits of the autonomy of the SAR. The court structure of the SAR is set out in Article 81.

49. In my view, as the Basic Law has not yet come into effect and as the power of interpretation is in the courts of the SAR, which shall come into existence when China resumes the exercise of sovereignty over Hong Kong on 1st July 1997, there is no question of the existing Hong Kong courts interpreting the Basic Law. The jurisdiction to do so is simply not there. To express views on the provisions, other than by way of interpretation and construction in accordance with the Basic Law, will not advance the matter further. I will therefore decline to rule that the provisions of the Exemption Ordinance infringe the Basic Law.

Conclusion

50. I will strike out the writ and the statement of claim and I order costs nisi of this application to the AG.

51. The parties have referred to other authorities and materials in the course of their submission which I have not repeated here. This does not mean that I have not considered them. What I have tried to do is to focus on the central issues relevant to this application.