郭卓堅 v. 民政事務局局長徐英偉先生及另一人

HCAL 1440/2021

[2021] HKCFI 3354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1440 OF 2021

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D E C I S I O N

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A. Introduction

1.  By his Form 86 dated 18 October 2021, and affirmation of the same date, the applicant makes another application for leave to apply for judicial review.  The applicant seeks leave on the papers (that is, without an oral hearing), and I agree that it is suitable for determination on paper.

2.  It may not be a coincidence that this application was filed after the date of argument on another of the applicant’s challenges heard in the Court of Final Appeal (“CFA”) on 11 and 12 October 2021, but before Judgment was handed down in that case on 5 November 2021 [2021] HKCFA 38: see further below.

3.  This time, the applicant seeks to challenge the constitutionality of section 36(1)(c) of the Rating Ordinance Cap 116 (“Rating Ordinance”) on the basis that section 36(1)(c) is contrary to Article 25 and Article 8 of the Basic Law (respectively “BL 25” and “BL 8”).

4.  In my view, the intended challenge does not meet the threshold for the grant of leave to apply for judicial review, which I therefore refuse.  I shall give brief reasons for that refusal.

B.     The Intended Challenge

5.  Section 36(1)(c) of the Rating Ordinance provides:

“36. Exemption of certain tenements from assessment

(1) The following tenements, or parts thereof, shall be exempt from assessment to rates –

…

(c) any village house within such areas of the New Territories as may be designated by the Chief Executive for the purposes of this paragraph, being—

(i) a building to which paragraph (a) or (b) of regulation 3(2) of the *Buildings Ordinance (Application to the New Territories) Regulations (Cap. 322 sub. leg. 1984 Ed.), or any regulations replaced thereby, applied immediately before the coming into operation of the Buildings Ordinance (Application to the New Territories) Ordinance (Cap. 121);

(ii) a dwelling house, built before 16 August 1945, of a type which was normally built for New Territories residents; or

(iii) a building in respect of which a certificate of exemption in respect of building works has been issued under section 4 or 5(a), (b) or (d) of the Buildings Ordinance (Application to the New Territories) Ordinance.”

6.  Simply put, under section 36(1)(c), the occupier of a village house will be exempted from assessment and payment of rates if the village house is (1) within an area in the New Territories which has been designated by the Chief Executive (“Designated Village Area”) and (2) the building specifications either meet the requirements in Buildings Ordinance (Application to the New Territories) Ordinance Cap 121 or its predecessor regulations in Cap 332 or is of a type normally built for New Territories residents before 16 August 1945.

7.  BL 25 provides that:

All Hong Kong residents shall be equal before the law.

8.  BL 8 provides that:

The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.

9.  From his affirmation, it is tolerably clear that the applicant complains that indigenous villagers are able to benefit from the rates exemption arrangement under section 36(1)(c) when citizens who are not indigenous villagers cannot.  Thus, the Government’s policy to designate village areas for the purpose of exempting rates assessment and payment constitutes discriminatory treatment on the basis of origin or birth.

C.     Previous Challenge

10.  The exemption arrangement under section 36(1)(c) was challenged for non-compliance with the right to equality before the law contrary to BL 25 in Secretary for Justice v Liu Wing Kwong [2014]2 HKLRD 155 (CFI) and (unreported, CACV 160/2013, 4 March 2016) (CA). The challenge failed – although the comparison in that case was between (a) an indigenous villager whose village is within the Designated Village Area and (b) an indigenous villager whose village was once within the Designated Village Area but was subsequently “de-designated”, and not with (c) a citizen who is not an indigenous villager, which would be the proposed comparison in this case.

11.  That said, the Court’s rulings at §108 of Liu Wing Kwong (CFI) (affirmed on appeal at §§44-45) included that:

 (1)     Even if there is differential treatment between the implementation of rates exemption scheme within the Designated Village Areas and those beyond those areas, that is justified.

 (2)     The grant of exemption from rates was for the purpose of protecting the right of the indigenous villagers to occupy traditional “ding houses”.  Such exemption was not granted for the benefit of non-indigenous villagers or newly constructed or reconstructed village houses which did not comply with the specification of ding houses.

12.  In Liu Wing Kwong, the argument that an indigenous villager had lawful traditional rights and interests to be unconditionally exempted from rates, protected by Article 40 of the Basic Law (“BL 40”) was rejected: see §66-68 (CFI) and §§35-38 (CA).

13.  BL 40 provides 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.

D.     Kwok Cheuk Kin v Director of Lands & Ors [2021] HKCFA 38

14.  In its recent decision, the CFA considered the ‘Small House Policy’, a non-statutory administrative policy operated by the Lands Department which authorises grants of land and building licences to the indigenous male population of certain villages in the New Territories on more favourable terms than those available generally.

15.  The question at issue (§2) was whether that policy was constitutional under the Basic Law.  The applicant contended that it is invalidated by the anti-discrimination provisions of the Basic Law and the Hong Kong Bill of Rights.  However, whilst accepting as common ground that the policy is prima facie discriminatory on grounds of both sex and social origin, the contrary argument put by the Government (and by the Heung Yee Kuk as interested party) was that that policy was validated by BL 40, protecting the lawful traditional rights and interests of the indigenous population of the New Territories.

16.  In essence, the CFA held (§43) that BL 40 qualifies and limits the application of the anti-discrimination provisions, not the other way round.  Amongst other points, the CFA held (§45) that the word “lawful” in BL 40 is not intended to refer to the absence of discriminatory features forbidden by BL 25 or BL 39, whose application in the special context of indigenous rights is addressed by BL 40 and excluded.

17.  Earlier in its reasoning (§39), when looking at the ‘starting point’ as to identify the nature of the “right” or “interest” which an applicant under the Small House Policy may be said to have, the CFA made express reference to a number of Ordinances, including section 36(1)(c) of the Rating Ordinance.

18.  It might also be noted that in Secretary for Justice v Chan Wah (2000) 3 HKCFAR 459, the CFA, while not engaging in a comprehensive definition of the rights and interests within BL 40, had noted that they include various property rights and interests such as exemption from Government rent and rates in respect of certain properties held by indigenous villagers.

19.  In any event, I am obviously bound by the recent CFA Judgment.  In my view, it also implicitly overrules the decision in the Liu Wing Kwong case insofar as that held that the exemption from rates is not a “right” or “interest” protected by BL 40. Therefore, the present intended challenge to section 36(1)(c) is not reasonably arguable.

E.     Conclusion

20.  Leave to apply for judicial review is refused, with no order as to costs.