LAU WONG FAT v. ATTORNEY GENERAL

IN THE COURT OF APPEAL

1996, No. 247
(Civil)

- Headnote -

Bill of Rights - Article 23 protecting rights of "ethnic, religious or linguistic minorities" - Indigenous inhabitants of the New Territories not "ethnic minorities" within the scope of Article 23 - In any case, the New Territories Land (Exemption) Ordinance Cap 452 not inconsistent with Article 23: "The argument that ... discrimination against women must be perpetuated in order to maintain the fundamental rights and freedoms which the BORO is designed to protect is wholly untenable".

Observations on the form of the proceedings: an action in private law for declaratory relief against the Attorney-General - No averment of violation of any private right for which relief under Order 15 r16 Rules of the Supreme Court might be claimed: "What the Court was asked in effect to do was to take one side in the political dispute, aligning itself on the plaintiff's side of the argument. This is something which no Court would ever do."

IN THE COURT OF APPEAL

1996, No. 247
(Civil)

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J U D G M E N T

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Godfrey, J.A. :

Introduction

1. This is an appeal from an order of Cheung J. made on 18 November 1996, striking out the writ (and statement of claim) in an action commenced on 21 June 1994. The plaintiff in the action is one Lau Wong Fat, who claims to be (and no doubt is) an indigenous inhabitant of the New Territories, in which capacity he sought by his writ to prevent "the Government of Hong Kong" from promoting legislation providing (in derogation of the Chinese custom prevailing in the New Territories) for women, in the absence of a will, to have the same rights to inherit rural land in the New Territories, as any other land in any other part of Hong Kong. But the plaintiff's action (in which he made the Attorney-General the defendant) was overtaken by events; the making of the New Territories Land (Exemption) Ordinance, Cap. 452 ("the Ordinance").

The New Territories Land (Exemption) Ordinance, Cap. 452

2. On 23 June 1994 the Governor of Hong Kong gave his assent to the above-mentioned Ordinance pursuant to the power in that behalf conferred on him by Article X of the Letters Patent and Royal Instructions to the Governor of Hong Kong, under which "the Government of Hong Kong" (all three arms of it, legislative, executive and judicial) is presently constituted. This Ordinance was the legislation the making of which the plaintiff had sought to prevent. A principal Secretary of State might have disallowed the Ordinance (see Article VIII of the Letters Patent) but has not done so. Unless the Ordinance restricts rights and freedoms enjoyed in Hong Kong in a manner which is inconsistent with the International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations on 16 December 1966 ("the ICCPR") as applied in Hong Kong (see Article VII(5) of the Letters Patent), we must give effect to it. The ICCPR has been applied to Hong Kong by the Hong Kong Bill of Rights Ordinance, Cap. 383 ("the BORO"). If the Ordinance is shown, in properly constituted proceedings, to restrict the rights and freedoms enjoyed in Hong Kong in a manner inconsistent with the BORO, then, I apprehend, the court would be entitled to declare the Ordinance to be of no effect; for the making of the Ordinance would have involved a contravention of Article VII(5) of the Letters Patent, and the Governor ought to have refused his assent to it. In other words, the court in those circumstances would treat the Governor's decision to assent to the Ordinance as judicially reviewable and would grant the appropriate relief.

Is it arguable that the Ordinance is inconsistent with the BORO?

3. This is the point of substance which the plaintiff raises; but, in my opinion, it cannot be seriously argued that the Ordinance is inconsistent with the BORO. In the court below, some reliance was placed on Articles 15 and 19 of the Hong Kong Bill of Rights, incorporated in the BORO. Article 15 protects freedom of thought, conscience and religion. Article 19 protects rights in respect of marriage and family. I am quite unable to find anything in the Ordinance which operates to restrict the rights and freedoms enjoyed by the people of Hong Kong in relation to the matters the subject of Articles 15 and 19 (and indeed in this court these Articles were not relied on). Reliance was placed on Article 23, which provides for the protection of the rights of minorities; and the judge felt it might be arguable that the Ordinance did infringe the rights and freedoms of an "ethnic" minority, i.e. the indigenous inhabitants of the New Territories. It is therefore appropriate to look more closely at Article 23. This reads 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."

4. For my part, I cannot see how, on any sensible reading of Article 23, the indigenous inhabitants of the New Territories can possibly be considered to be an "ethnic" minority at all for the purposes of Article 23; but, even if I am wrong about this, I cannot see how the Ordinance denies them from enjoying any of the rights which Article 23 is expressed to protect. It does not prevent an indigenous inhabitant of the New Territories from making a will in favour of his male descendants to the exclusion of his female descendants, and so preserving the custom himself. All the Ordinance does is to accord to women the same rights in relation to the inheritance of land anywhere in Hong Kong as are enjoyed by men. It removes one instance of discrimination against women in an era in which the elimination of all forms of discrimination against women is a policy to which all civilised nations subscribe. As it seems to me, the argument that this instance of discrimination against women must be perpetuated in order to maintain the fundamental human rights and freedoms which the BORO is designed to protect is wholly untenable.

The result

5. Since the plaintiff's case is untenable, it follows that we must affirm the judge's decision to strike out the writ and statement of claim in this action, although on a different ground. The procedural point which exercised the judge, and on which his own decision proceeded, i.e., that the proper way for the plaintiff here to advance his case would have been by way of judicial review rather than by ordinary action, is, in my opinion, not one which we need to decide, although as at present advised, I would agree with the judge. Where a person seeks to establish that the decision of a person or body infringes rights which are entitled to protection under public law, he must, as a general rule, proceed by way of a judicial review and not by way of an ordinary action, whether for a declaration or an injunction or otherwise.

6. In O'Reilly v. Mackman [1983] 2 AC 237, it was held that if a person commenced an ordinary action where he should have applied for judicial review, the action will be struck out by summary process. It would, as a general rule, be contrary to public policy, and as such an abuse of the process of the court, to permit a person, seeking to establish that the decision of a public authority infringed 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 of the Rules of the Supreme Court made for the protection of such authorities; see per Lord Diplock at p.285.

7. There are, however, cases in which it might be permissible to litigate public law issues in private law proceedings, e.g. where the invalidity of the decision of the public authority arises as a collateral issue in a claim for infringement of a private right. The scope of the rule in O'Reilly v. Mackman is still a matter of debate and it is fair to add that in Reg. v. Employment Secretary Ex parte Equal Opportunities Commission [1995] 1 AC 1, Lord Lowry said (at p. 34) that he had never been entirely happy with the tight procedural restriction for which O'Reilly v. Mackman was an authority. Lord Browne-Wilkinson said (also at p. 34) that as early as 1911 it was established that, in a civil action (my emphasis) brought by a competent plaintiff, the court could grant declaratory relief against the Crown as to the legality of actions which the Crown proposed to take: he referred to Dyson v. Attorney-General [1911] 1 KB 410.

8. I must say that, in my provisional view, the only proper course for an applicant seeking to challenge, under the BORO, the validity of an Ordinance, would be by way of application, after the Governor had assented to the Ordinance, for a judicial review of his decision to do so, in which proceedings the court would be able to make a declaration that the Ordinance was of no effect, under the familiar principle established in the case of Dyson v. Attorney-General to which I have referred. (What the position might be after 1 July 1997 is another matter, which must be left over for consideration after that date.)

9. For my part, I would dismiss this appeal.

Ching, J.A. :

10. For the reasons given by my Lord, Godfrey, J.A., I too would dismiss this appeal.

Litton V-P:

11. The action as instituted is an action against the Attorney-General for declaratory relief, presumably under Order 15 r16 of the Rules of the Supreme Court which, as relevant, states:

"... the Court may make binding declarations of right whether or not any consequential relief is or could be claimed." (Emphasis added).

12. The statement of claim, by which the plaintiff's right to relief against the Attorney-General is asserted, is an astonishing document. It reads like a political manifesto. It offends Order 18 r7 which requires a pleading to be a statement in a summary form of the material facts on which the party relies for his claim. This statement of claim is anything but brief and most of the facts appearing therein are not material.

13. The only claims made are for declarations purportedly of "right" and are as follows:

"1. A declaration that the Plaintiff is and has been one of the indigenous inhabitants of the New Territories;

2. A declaration that the Plaintiff is entitled to, and/or has a legitimate expectation to, protection by the Government of Hong Kong of the traditional or customary rights and interests of the indigenous inhabitants of the New Territories;

3. A declaration that the Government of Hong Kong is not entitled to, or otherwise ought not to, pass or propose to pass legislation the content, tenor or purport of which may or will alter or materially alter the said traditional or customary rights and interests of the indigenous inhabitants of the New Territories;

4. A declaration that the traditional or customary rights which have been prevailing and observed and enforced in the New Territories amongst its community of the indigenous inhabitants, in respect of land trusts and intestate succession to land, are part of the traditional or customary rights and interests of such indigenous inhabitants of the New Territories;

5. Appropriate declarations and orders;"

14. Happily, such nebulous claims are seldom seen in pleadings lodged in the High Court.

15. As I see it, the action begun by writ against the Attorney-General here is fundamentally misconceived. On the face of the statement of claim, there are no legal rights protected by law which have been allegedly violated by the Hong Kong Government. It is not "the Government of Hong Kong", as averred in para 3 of the claims to relief, which "passes legislation". The grievance as expressed in the statement of claim, in essence, is that the Legislative Council in October 1994 should not have passed the New Territories Land (Exemption) Ordinance, to which the plaintiff and perhaps other indigenous inhabitants of the New Territories objected: And the Ordinance having been passed, the Governor should not have assented to it. In whatever way the plaintiff's grievance is dressed up in the statement of claim, there is no averment of violation of a private right for which relief might be claimed. This is apparent from the nebulous nature of the declarations sought. What the Court was asked in effect to do was to take one side in the political dispute, aligning itself on the plaintiff's side of the argument. This is something which no Court would ever do.

16. It would be best to recall what Lord Diplock said in Gouriet v. Union of Post Office Workers [1978] AC 435 at 501D:

" The only kinds of rights with which courts of justice are concerned are legal rights; and a court of civil jurisdiction is concerned with legal rights only when the aid of the court is invoked by one party claiming a right against another party, to protect or enforce the right or to provide a remedy against that other party for infringement of it, or is invoked by either party to settle a dispute between them as to the existence or nature of the right claimed. So for the court to have jurisdiction to declare any legal right it must be one which is claimed by one of the parties as enforceable against an adverse party to the litigation, either as a subsisting right or as one which may come into existence in the future conditionally on the happening of an event."

17. In my judgment there is no cause of action disclosed in the statement of claim and the judge was entirely right to have struck out the pleading and dismissed the action. I agree with the reasons in Godfrey JA's judgment. I too would dismiss this appeal.