KWOK CHEUK KIN AND ANOTHER v. DIRECTOR OF LANDS AND OTHERS

CACV 234/2019
CACV 317/2019
CACV 319/2019
(heard together)

[2021] HKCA 590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 234, 317 & 319 OF 2019

(ON APPEAL FROM HCAL NO 260 OF 2015)

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J U D G M E N T

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The Court:

1.  This is the applicants’ application for leave to appeal against the judgment we handed down on 13 January 2021 [2021] HKCA 54 (“the CA Judgment”) pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).

2.  The applicants raised the following five questions which they submit are of great general public importance:

(1)     Is the right of a male indigenous inhabitant of the New Territories to apply to build one small house in his lifetime in a recognised village under the Small House Policy (“SHP”) formulated by the British Administration in 1972 a lawful traditional right or interest within the meaning of Article 40 of the Basic Law (“BL40” and “BL”)? (“Question 1”)

(2)     In the event that it be held that the SHP is protected by BL40, is the Court required to apply “the double proportionality test” to determine whether the right of a male indigenous inhabitant of the New Territories to apply to build one small house in his lifetime in a recognised village should be curtailed by the abolition of the SHP so as to give precedence to a competing right, viz the right to equal treatment protected by Article 25 of the BL (“BL25”); or vice versa? (“Question 2”)

(3)     Does a person who is a victim of a discriminatory government policy have sufficient standing to challenge that policy by way of judicial review? (“Question 3”)

(4)     Where a government policy is an ongoing one and is held to unconstitutional, should the court refuse relief on the ground of delay? (“Question 4”)

(5)     In a judicial review of an administrative policy, where the declaratory relief sought is limited to prospective relief only, is the court entitled to refuse such prospective relief on the ground of hardship, prejudice or detriment to good administration? (“Question 5”)

3.  The application is opposed by both the respondent and the interested party.

4.  In our view, Question 1 is plainly of great general or public importance which ought to be submitted to the Court of Final Appeal.

5.  In relation to Questions 3 to 5, the applicants effectively submit that they relate to whether the principles so far laid down by the Court of Appeal and applied in the CA Judgment on locus and delay are too restrictive and narrow, especially viewed in light of various English authorities in these respects[1], and in cases where the applicants are seeking to challenge a continuing Government Policy and seeking only prospective reliefs.  We are also of the view these questions are also of great general or public importance and should be submitted to the Court of Final Appeal for determination, in particular when we will grant leave to appeal under Question 1.

6.  We will however refuse to grant leave for Question 2:

(1)     The double proportionality arguments were not advanced and relied upon by the applicants in the Court of First Instance.  This court by way of its decision made on 21 July 2020[2] had also refused the applicants’ application for leave to amend the Notice of Appeal by adding the arguments on double proportionality[3].

(2)     In the premises, the arguments have not been heard and decided by the Court of First Instance and this Court.  It is not the practice of this Court to grant leave to appeal on new points not canvassed on appeal: Secretary of Justice v Leung Kwok Hung [2019] HKCA 645 at [10].

(3)     Further, this new point is fact sensitive as the double proportionality test concerns a balancing exercise carried out by reference to the particular facts and circumstances of the case in question. However, given that the arguments have not been advanced in the court below and thus not all the relevant evidence has been adduced on this point, not all the relevant facts and circumstances will be before the Court of Final Appeal.  In the premises, leave should not be granted to this question: Flywin Co Ltd v Strong & Associates (2002) 5 HKCFAR 356 at [39].

7.  For the above reasons, we will grant leave to appeal to the Court of Final Appeal on Questions 1 and 3 to 5, but refuse leave on Question 2.

8.  We further order that costs of the application be in the cause of the appeal before the Court of Final Appeal.