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FACV 2-4/2021

IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2, 3, 4 OF 2021 (CIVIL)

(ON APPEAL FROM CACV NOS. 234, 317 & 319 of 2019 (Heard Together)) __________

BETWEEN

KWOK CHEUK KIN APPELLANT

and

DIRECTOR OF LANDS 1st RESPONDENT CHIEF EXECUTIVE IN COUNCIL 2nd RESPONDENT SECRETARY FOR JUSTICE

3rd RESPONDENT

and

HEUNG YEE KUK INTERESTED PARTY

__________

_____________________________________________

CASE FOR THE RESPONDENTS _____________________________________________

A. OVERVIEW1 1. These appeals raise principally the question of whether the

right of an eligible NTII to apply under the SHP falls within “lawful traditional rights and interests” of NTIIs within the

Ref.

1 Where appropriate, we shall adopt the nomenclature and abbreviations in the

Appellant’s Printed Case.

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meaning of BL40. This raises a question of construction of BL40.

2. CA arrived at its conclusion by two routes. The first is contained

in CA Judgment §93, viz that “lawful traditional rights and interests of NTIIs” in BL40 mean those which are, as a matter of historical fact, recognized to be NTIIs’ lawful traditional rights and interests in the Hong Kong legal system at the time of promulgation of the BL on 4 April 1990. CA held that that conclusion is supported by the coherence principle, in particular, reading BL40 together with BL120 and BL122. The second is on the alternative case upheld at CA Judgment §§117-128 that the SHP satisfies both the “traditional” and “lawful” elements in BL40. The Respondents will seek to support CA’s decision on both routes. Either one would yield a positive answer to Question 1.

3. The right to apply protected is, as it has always been historically, subject to the law and the Government’s control and discretion to modify the practices/policies in order to meet the circumstances of the day.

4. On the remaining 3 questions, the Respondents submit that

the answers should be: 4.1. Question 2: Standing turns on whether an applicant has

sufficient interest2 which is a multi-faceted contextual question. It is wrong to ask whether an applicant is a victim in the abstract. On the facts, the Appellant plainly has no sufficient interest.

[A/6/160-161/CA§93] [A/6/170-174/CA§§117-128]

2 s.21K(3) of High Court Ordinance (Cap. 4) (“HCO”); O.53 r.3(7).

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4.2. Questions 3 and 4: There has been phenomenal delay in this case and complete absence of explanation for such delay. Public interest in good administration and the expectations of eligible NTIIs and their families are rightly stressed as important by CA (§132). On the facts, CA was plainly right to conclude that it would have refused to grant relief.

B. SHP3 5. The SHP, in gist, is a policy whereby an eligible NTII may apply

to build one small house for once in his lifetime, either on his own land or on Government land, for his own use on concessionary terms.

6. Whilst formalized in 1972, the SHP is grounded in and evolved

from policies/practices dating back to the early 1900s adopted by the Colonial Government in recognition of traditional rights and interests of NTIIs’ forebears before the commencement of the NT Lease regarding the building of small houses in NT villages for their own use.

7. More specifically, under Qing law, land was held in perpetuity

and not subjected to restrictions against building. It was common ground that anyone wishing to build a house on his arable land was not required to obtain a licence from the Qing

[A/6/175-176/CA§132]

3 See CMY 2nd §§10-101; Section E below.

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authorities.4 It was also undisputed that unregistered waste land was open to be registered by civilians.5

8. Shortly after the Second Peking Convention (i.e. NT Lease), the Colonial Government introduced fundamental changes to the system of land holding in NT. Those changes were described in the judgments in Winfat (footnote 14 below). As is well known, the Colonial Government introduced Block Crown Leases which contained standard restrictions against building. A villager who wished to acquire land to build on or build on his own agricultural land required the Government’s approval, which introduced policies/practices that favoured the NTIIs in this connection. As mentioned, these early policies/practices developed over time. They were always subject to the law and land tenure of the Colony. Over the years, various documents recorded the fact that the policies/practices were at least in part based on the Colonial Government’s recognition of what used to be the rights and customs of NTIIs before 1898 and the promise by the Governor in the early days of the NT Lease that the landed interests and usages and good customs of NTIIs would not be interfered with.6

4 Hase/Cheung Report §33. Hase’s opinion is that consent was nevertheless required

from the village community. See his Supplementary Report §5, referring to Governor Stubb’s despatch dated 5 August 1925 which read “… The result was that the villagers built houses and otherwise changed the nature of their holdings and said nothing about it to the officials although local custom usually required that they should get permission from the village elders….” The Judge referred to this evidence at §62(4)(d) of his judgment, which was quoted by the CA at §41(2)(e) of its judgment. The Judge accepted that evidence, see §116. See also Messer and Tsoi Memo.

5 Hase/Cheung Report §19. 6 See (i) CSO 804/06, in particular, the minute from Cecil Clementi dated 11 January

1906; (ii) Enclosure 2 to ExCo Memo April 1957; (iii) ExCo Memo February 1967; (iv) 1980 Paper, p.1 and see §50 below.

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9. The Colonial Government, and later the HKSAR Government, exercised control and discretion to modify the policies/practices to meet the challenges of the day. The policies/practices broadly captured the essential features of the right or interest enjoyed by NTIIs before the commencement of the NT Lease. In broad terms, the SHP provides that an eligible NTII may apply for, and the Government may in its discretion approve, one of the three main methods of grant:

9.1. FBL: an eligible NTII who wishes to erect a small house

on his own agricultural land may apply for permission free of any premium.

9.2. PTG: an eligible NTII who does not own land but wishes to erect a small house for his own use may apply for Government land on concessionary terms.

9.3. Land Exchange: It is a practical way of overcoming

common difficulties encountered by NTIIs applying for FBL (eg where an eligible NTII owns land not large enough or of an unsuitable shape). Where Government land is granted, it is on concessionary terms.

10. The SHP is recognized in, and its implementation and operation

is supported by, a framework of legislations.7 Between 1972 and 2016, the total number of FBLs, PTGs and Land Exchanges granted were around 28,000, 10,000 and 3,600 respectively.

7 Eg: Buildings Ordinance (Application to the New Territories) Ordinance (Cap. 121),

Town Planning Ordinance (Cap. 131); New Territories Leases (Extension) Ordinance (Cap. 150); Part II of Schedule 5 to Sex Discrimination Ordinance (Cap. 480) (“SDO”); section 4 of the Government Rent (Assessment and Collection) Ordinance (Cap. 515).

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C. PRINCIPLES OF CONSTITUTIONAL INTERPRETATION 11. Words in a constitutional document, which use ample, general

and open-textured language, must be construed in context and by reference to its purpose: Ng Ka Ling p.28D-I; Comilang §60 (CFA); Cheng Kar Shun §162; Sixtus Leung §50.

12. The genesis and historical background (including drafting materials) of a constitutional provision are ordinarily useful, and sometimes essential, for the understanding of its meaning and purpose objectively construed: Matadeen v Pointu p.108C-D;8 Brownlee v R §§7-8; Cole v Whitfield p.385; GA v Director of Immigration §§70-73 Chong Fung Yuen p.224E-225D.

13. The historical context and drafting materials may be used to identify the subject matter of a particular constitutional provision: Cole v Whitfield p.385; Port MacDonnell Professional Fisherman’s Association Inc v South Australia p.376; New South Wales v Commonwealth p.501; Kartinyeri v Commonwealth p.401.

14. A similar distinction is drawn in statutory interpretation where the rule of using legislative materials to identify the “mischief” or “purpose” of a provision is plainly permissible (which is different from the use of such materials to ascertain the meaning of statutory language under the Pepper v Hart rule): HKSAR v Cheung Kwun Yin at §14; Lucien Masset v SJ §§78-79.

15. The Appellant’s argument (App Case §§40-43, 49) that the Court is not entitled to consider drafting materials absent

8 Adopted by CA in Chan Yu Nam v SJ §32. Leave to appeal was refused.

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ambiguity is erroneous. Here, unlike the extrinsic materials relied on in Vallejos (§§24, 96), the Respondents are seeking to rely on extrinsic materials that came into existence before April 1990 for the purpose of ascertaining the background and context to the enactment of BL40. In Vallejos, this Court refused to consider extrinsic material, in particular, the Statement which was post BL (being part of the 1999 NPCSC Interpretation) on the basis that the meaning of “ordinarily resided” in BL24(2)(4) was clear. In Vallejos itself, this Court plainly did consider context (§82). Indeed, Ma CJ emphasized (§§75-78) that modern approaches to statutory and constitutional interpretation insist that context and purpose be considered in the first instance.

16. Further, the BL must be read holistically and coherently. An

article should be read with and in light of other articles (especially those addressing the same or similar subject) to produce a harmonious and congruous rather than a discordant meaning. The BL drafters must have had a common and consistent intent (instead of a “split personality”) regarding a particular subject. Chief Executive of HKSAR v LegCo President §51; Comilang §61 (CFA); §4 (CA); Kong Yunming §163.

17. Where it is possible to come to a construction that renders two provisions within the same instrument compatible, it is the Court’s duty to adopt such construction: SJ v Cheung Kai Yin §58; Institute of Patent Agents v Lockwood at 360.

18. The principle that the general does not detract from the specific applies: Endell Thomas v AG of Trinidad & Tobago p.135E-F; Bennion, Statutory Interpretation (8th Ed), §21.4.

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19. A treaty reservation (including a post-enactment reservation) is also a relevant and important aid for both the BL and the BOR: Comilang §5 (CA); ZN v SJ §§48-50 (CFA); §202 (CA).

20. A theme underpinning the BL is the continuity of social, economic and legal institutions and systems prior to the resumption of Chinese sovereignty on 1 July 1997: Comilang §64 (CFA); Catholic Diocese of Hong Kong v SJ §119 (CFI); §62 (CA); HKSAR v Ma Wai Kwan David p.774E-F; Chan Yu Nam §44.

D. FIRST ROUTE OF INTERPRETING BL40 21. CA has set out much of the relevant context and purpose:

Judgment §§34-86.

D1. Context

22. The context for BL40 could only be properly understood by tracing Hong Kong’s colonial history to 1898 when the NT Lease commenced. CA identified 12 contextual matters.

23. The context is that after the commencement of the NT Lease, the Colonial Government, within the new legal framework, adopted certain policies (which changed from time to time) that only favoured eligible male NTIIs in recognition of the rights enjoyed by their forebears who lived in NT before it became part of the colony. The SHP is undoubtedly the most well-known of the rights and interests enjoyed by NTIIs (and unsurprisingly recognized as such by the parties and the Court in SJ v Chan Wah p.477E-F). At the same time, the proposal to preserve those rights was highly controversial given its discriminatory nature against women and non-NTIIs.

[A/6/127-157/CA§§34-86]

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24. Viewed in its proper historical context, it is clear BL40 is

concerned to protect the rights and interests of a distinct group of individuals descended from inhabitants of NT before it was leased to the British.

25. An important part of the context is, of course, the terms of the JD. Under §2 of Annex III, it was expressly stated that: ”In the case of old schedule lots, village lots, small houses and similar rural holdings, where the property was on 30 June 1984 held by, or, in the case of small houses granted after that date, the property is granted to, a person descended through the male line from a person who was in 1898 a resident of an established village in Hong Kong, the rent shall remain unchanged so long as the property is held by that person or by one of his lawful successors in the male line.”

26. It is clear from this provision that the two Governments agreed

that preferential treatment be afforded to certain persons descended from the male line from a person who was a resident of an established village. Such preferential treatment is prima facie discriminatory.

27. It is to be remembered that when the NT Lease was granted

and the Block Crown Lease was first conceived, the then intention was that the system of land holding in the NT would last until 30 June 1997. Prior to 30 June 1997, the rights and interests of NTII have been recognized (to the extent relevant) by the implementation of the SHP and underpinned by relevant legislation. Such recognition was recognized as lawful without the need for justification or proportionality analysis. What then

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is to happen to those rights and interests after 1 July 1997? The purpose of the BL was (inter alia) to lay down the system of law in the HKSAR including how to deal with land leases post 1 July 1997. When construed in context and with due regard to their purpose, it is clear that BL40 together with BL120 and BL122 were intended to continue those rights and interests.

D2. Purpose 28. Against this context, the purpose of BL40 is obviously to

protect the lawful traditional rights and interests and allow those rights and interests to be continued to be enjoyed by NTIIs. As CA observed (§87 of Judgment), NTIIs are treated as a class of their own when it comes to their traditional rights and interests and the protection they enjoy. The purpose must be to protect those rights notwithstanding that the protection of these rights will be discriminatory both against female and non-NTIIs.

29. In this respect, BL40 is unique amongst the provisions in Chapter III of the BL. All the other provisions prescribe the rights and duties of all residents in Hong Kong (comprising of permanent and non-permanent residents) without discrimination. In contrast, BL40 has, as its purpose, the protection of certain “traditional” rights and interests of a specific class of persons. BL40 itself would, therefore, intrinsically be discriminatory.

30. Another important unique feature of BL40 is that its manifest purpose is the protection of “traditional” rights and interests. Again, this is unlike other provisions in the BL. The very notion that the rights and interests are “traditional” must mean that

[A/6/157-158/CA§87]

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BL40 is aimed at protecting rights and interests which had historically been enjoyed but are still extant. Because they must be “traditional”, there is no room for an increase of those rights and interests. The rights which are the subject of protection must therefore have been identifiable at the time when the BL was promulgated. This conclusion is also compelled by the context and purpose of BL40 – the whole purpose of BL40 is to protect and preserve those traditional rights and interests. It is therefore necessary to distinguish BL40 from the general proposition that the BL is a living instrument and that the use of general language is to be understood as allowing flexibility in its application.

31. The word “lawful” qualifies “traditional”. An important part of the context rightly identified by CA (§38) is that the recognition of the rights and interests of NTII is subject to the very important caveat that such recognition must conform with the general laws of Hong Kong, in particular the law, system and policies governing land holding (and any modifications in respect thereof). The inclusion of the concept of “lawful” is to limit the protection to those traditional rights and interests which were recognized as “lawful” within the aforesaid law, system and policies as modified from time to time.

32. It is obvious from the drafting materials that the BL drafters were perfectly aware of the historical context and the fact that the Colonial Government operated (and continued to operate) policies/practices that favoured NTIIs in recognition of their customs and traditions before the commencement of the NT

[A/6/129/CA§38]

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Lease, and that such policies and practices were discriminatory against the wider public.9

33. What is equally clear is that the BL drafters were plainly conscious of the conflict between NTII’s rights and interests and the principle of equality. They discussed, debated, deliberated and decided to include (as opposed to the alternative proposal of excluding) a provision in the BL to protect those rights and interests of the NTIIs which were recognized as lawful traditional rights.10

D3. Construing the BL as a whole 34. It is trite that BL40 must be construed in the context of other

provisions, especially those which deal with the same or allied subject, i.e. BL120, BL122: CA Judgment §§99-105.

35. As the CA held (§§100-102), BL120 and BL122 are significant in evincing the intention that small house grants made before or on 30 June 1997 would continue to be recognized and protected under the laws of the HKSAR.

[A/6/163-166/CA§§99-105] [A/6/164-165/CA§§100-102]

9 Documents for BLDC’s 3rd Plenary Session, p.27; Final Report on the Rights and

Interests of Indigenous New Territories Inhabitants, §§3.1.1, 3.2.3; Special Report on the Indigenous Inhabitants of the New Territories in the Consultation Report Vol.4 of the Draft Basic Law, §§1-3.

10 10th meeting of BLCC Special Group, pp.1-2; Discussion Paper on Established Lawful Rights and Interest and Traditional Practice of Indigenous NT Inhabitants (draft) by BLCC Special Group, §§2.1 to 2.3; Final Report on the Rights and Interests of Indigenous New Territories Inhabitants, §§3.1 to 3.3; Compilation of the Views of Visiting Mainland Drafters §3.7; Collection of Views of BLCC Special Groups regarding the Draft Basic Law in BLCC Consultation Report Vol.1, §21; Special Report on the Indigenous Inhabitants of the New Territories in the Consultation Report Vol.4 of the Draft Basic Law §§5-6; General Report on the Articles in Chapter 3 in the Consultation Report Vol.5 of the Draft Basic Law §§1-2.

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36. BL120 was enacted to give effect to §1 of Annex III of the JD. The land leases that were covered by §1 of Annex III included leases granted in accordance with §§2 and 3 of Annex III. §2 of Annex III specifically included small house grants without differentiating between FBL, PTG and Land Exchange. Thus, BL120 must have been intended to confirm the lawfulness of all three types of grants made before the establishment of the HKSAR, which extend beyond 30 June 1997.

37. BL122, which grants to NTIIs the privilege of having their

previous rent remain unchanged, must have been predicated upon the continued validity of the small house grants made after 30 June 1984. Significantly, unlike BL120, BL122 does not employ the expression or the concept of “before the establishment of the HKSAR”. The expression in BL122 “on 30 June 1984 held by, or, in the case of small houses granted after that date...” makes it clear that the benefit conferred by BL122 is not limited to grants made before the establishment of the HKSAR but extends to small house grants made after 1 July 1997, which must imply a recognition that these grants are valid and lawful.

38. Accordingly, the combined effect of BL120 and BL122, insofar

as small house grants are concerned, is as follows: 38.1. First, all small house grants made before the JD (27 May

1985) that extends beyond 30 June 1997, and all rights relating thereto, will continue to be recognized and protected under HKSAR laws.

38.2. Second, all small house grants made from 27 May 1985

to 30 June 1997, in accordance with either §§2 or 3 of

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Annex III, that extends beyond 30 June 1997, and all rights relating thereto, will continue to be recognized and protected under HKSAR laws.

38.3. Third, small house grants that existed on 30 June 1984

and also all such grants made after that date that fit the requirements prescribed in BL122 will enjoy an additional benefit – not enjoyed by other lessees – that the previous rent shall remain unchanged.

39. These provisions in the BL provide strong support for the

conclusion that SHP must be regarded by the BL as valid and lawful both before 30 June 1997 and after 1 July 1997. Otherwise, there would be no small house grants that have the effect identified in BL120 and BL122.

40. The above was the approach adopted by CA as the first basis

for upholding the constitutionality of the SHP. Once the Court arrived at the aforementioned interpretation of BL40, there can be no doubt that the SHP was recognized as the paradigm right and interest that would be the subject of protection under BL40.

E. SECOND ROUTE OF INTERPRETING BL40 41. The alternative approach involves a consideration of whether

SHP comes within the meaning of “lawful traditional” rights and interests.

42. “Lawful” means lawful according to the domestic laws of Hong

Kong on 1 July 1997 but having regard to the BL and in particular BL40, BL120, BL122 such that such rights and

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interests could not be regarded as unlawful on the ground that they are discriminatory in nature bearing in mind that BL40 is, by definition, discriminatory against the majority who are non-NTIIs.11

43. “Traditional” rights and interests are confined to those traceable to (in the sense that it captures or reproduces the essential or core features of) the rights and interests of NTIIs before the commencement of the NT Lease in 1898, with allowances for occasional gaps or disruptions in the exercise of such rights and interests.12

44. In essence, the Court should first identify what are the rights and interests that it is concerned with and second ask whether they are traceable to rights and interests of NTIIs in 1898. There is no need to show the rights and interests are identical. Rather it suffices if the rights and interests enjoyed by NTIIs under the SHP can be said to have captured or reflected the essential feature of the rights enjoyed bearing especially in mind the change in the system of land holding (CA Judgment §§38-47). Further, the Court is concerned with the customs and usages practised and observed in the NT in 1898. See CA Judgment §§36, 41 and s.13 of the New Territories Ordinance (Cap. 97).

E1. Lawful 45. The SHP (and the right of an eligible NTII to apply thereunder)

is plainly lawful under the law on 1 July 1997 and in particular bearing in mind all the BL provisions, as elaborated at Section

[A/6/129-137/CA§§38-47] [A/6/128-129, 133/CA§§36, 41] [A/1/87-88/ CFI§§128-129] [A/6/162,

11 [A/1/87-88/CFI§§128-129]; [A/6/174/CA§126]. 12 [A/1/79/CFI§115]; [A/6/138-149, 159-162/CA§§48-67, 69-70, 91, 94-95].

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D above, could not be regarded as unlawful on discriminatory grounds: CFI Judgment §§128-129; CA Judgment §126. The CEDAW reservations reinforce the point: CA Judgment §§96, 107-112.

46. More specifically, it is a well-publicized administrative policy under which successful applicants are permitted to build small houses, and gain property rights protected and recognized by Hong Kong laws. As mentioned at §10 above, the SHP is recognized in, and its implementation and operation is supported by, a framework of legislations. Whilst individual decisions made under the SHP may be amenable to judicial review, primarily on illegality or irrationality grounds (eg Hung Hing v Director of Lands §§18-32; Koon Ping Leung v Director of Lands at §§17-22), the SHP itself was never held to be an illegal policy.

E2. Traditional (FBL and PTG) 47. The relevant rights and interests of NTIIs before the

commencement of the NT Lease in 1898, from which an eligible NTII’s right to apply under the SHP should be traceable back to, are NTIIs’ rights and interests under the common or customary tenure regarding the building of houses. Such rights and interests, as found by the Courts below and from which there is no challenge, were outlined in CFI Judgment §§60-66; CA Judgment §41.

48. In summary, the rights and interests provided that the villagers exercised autonomy over whether a villager would be permitted to acquire land or build a house. A villager had to apply for permission from his village elders. Permission might

167-169, 174/CA§§96,107-112, 126] [A/1/42-49/ CFI§§60-66] [A/6/130-133/CA§41]

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be refused, even to build on a villager’s own land, for feng shui and other planning considerations.

49. There is ample supporting evidence to illustrate the position: 49.1. Historical reports: (a) Lockhart Report 1900 (under

“Land”); (b) Messer & Tsoi Memo 1900 (under “Chinese law regarding Land”, “Hill land and Waste land”, “Cultivated land”, “New land brought under cultivation”, “Landlord and Tenant”); (c) Gompertz Notes 1901 §§2-12, 23.

49.2. See also (a) Governor Stubb’s memo 1925 §5; (b) Governor Clementi’s memo in 1926 §5. Both noted that before the NT Lease, villagers could in theory build houses without official sanction, but in truth they had to apply to their elders for permission who might refuse and therefore “it is entirely untrue that at that time a landowner could build upon his land when, where, and how he personally chose.”

49.3. See further: (a) Dr Hase’s Report §§26-47; (b) Dr Hase’s

Supplementary Report §§4-17.

50. The signing of the NT Lease on 9 June 1898, the various proclamations or public statements by Governor Blake in 1899, following what was known as the Six-Day War, which expressed the Colonial Government’s intention to respect the landed interest and existing customs and usages of the NT villagers (around 90,000 in total) but subject to Hong Kong law

[A/1/49-53/ CFI§§67-71] [A/6/127-129/CA§§35-38]

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were recorded at CFI Judgment §§67-71; CA Judgment §§35-38.13

51. What followed was that the previous land tenure was abolished and replaced by a fundamentally different system where all NT land became vested in the British Crown. Occupied land (held by NTIIs under the previous land tenure in perpetuity and not subjected to any restrictions upon building on the land whose claims to land were upheld by the Land Court) became subject to Block Crown Leases for limited years with covenants against converting agricultural or garden ground into use for building purposes or erecting any building or structures thereon. CFI Judgment §§72-80; CA Judgment §§39-47.14

52. In terms of an eligible NTII’s right to apply for a small house before the implementation of the SHP in 1972, beginning from 1906, bearing in mind the Land Court completed its work in 1905, an eligible NTII could apply to the Colonial Government pursuant to its policies/practices, modified from time to time, and obtain a licence to build a small house on his agricultural land free of premium, i.e. FBLs:15 52.1. In Mr Clementi’s memo of 11 January 1906, he recorded

his views that the villagers were entitled to build houses on their padi land. Others in Government held the view that they needed permission. After deliberations,

[A/1/53-59/ CFI§§72-80] [A/6/130-137/CA§§39-47]

13 Report on NT 1900, Appendices XX, IX, X, IV, II; Paper at 10th meeting of BLCC Special

Group, p.1. 14 Winfat Enterprises (HK) Co Ltd v AG p.216B-221H (CFI); p.40A-41B, 50J-52H (CA);

p.744H-745D, 748H-749H (PC); Gompertz Notes on Land Court 1901; CMY 2nd §§16-25. Cf AG v Melhado Investment Ltd. Hase Report §§57-59.

15 [A/1/70-80/CFI§§100-114, 116] approved by [A/6/171/CA§119]. CMY 2nd §§41-55.

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authorization to grant FBLs was gazetted on 9 March 1906.16

52.2. Generally, only male villagers benefitted because only

males would inherit agricultural land from their fathers and the Old Schedule lots (i.e. land subject to the Block Crown Leases granted following the Land Court’s adjudication of villagers’ claims under the previous tenure) were owned by males, and District Officers responsible for making grants consulted and deferred to village elders who would object to a woman converting agricultural land.17

52.3. In Governor Stubbs’ dispatch of 5 August 1925, he

noted that ordinarily free conversions would be granted to villagers, and premium would be charged only when there was extensive development in the area or the conversion was applied for erecting a European style residence, especially by speculators.

52.4. The practice/procedure for FBLs was outlined in the

Supplementary Notes to Jacks Digest compiled in 1939 (page 4).

52.5. On 9 April 1957, the Governor-in-Council approved a

standard policy on the terms of conversion. Notably, as regards Old Schedule lots (with no distinction between lots inherited or purchased), it was said that generally a bona fide villager would, subject to planning and feng

16 [A/1/72-73/CFI§§103-104]. 17 Davison/Hase Report §§8-19.

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shui considerations, be permitted to build a village-type housing for his own occupation free of premium.

52.6. New Grant lots (i.e. unclaimed or unoccupied land,

which became vested in the British Crown and sold by the Colonial Government) were excluded. §2 of Enclosure 2 of the 1957 ExCo Memo attributed the reason for the distinction accorded to Old Schedule lots to the need to honour “our undertakings towards the country people...that the grantees of old schedule lots and their descendants are not required to pay premium for conversion of their agricultural land to build traditional houses for their occupation; and...this “right”...has been treated for so long as “entrenched” that it would now be dangerous to deny it.”

52.7. On 28 June 1960, ExCo extended FBL to cover pre-war

New Grant agricultural lots (i.e. grants made before 7 December 1941) in order to cope with village expansion.18

52.8. The last important evidence for present purposes

before the SHP’s implementation in 1972 is that on 28 February 1967, ExCo made further changes to the policy concerning FBLs and §1 of the ExCo Paper recorded that “Since the beginning of the lease of the New Territories there has been a tacit agreement that the villagers be allowed to build houses for their own occupation on their own agricultural land held under the Block Crown Lease, free of premium.”

18 Completing the picture, on 1 August 1979, the FBL was extended to cover post-war

New Grant agricultural lots.

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53. For an eligible NTII without land, the Colonial Government

adopted successive practices/policies under which building lands within village areas were sold at concessionary rates, which were designed to place an eligible NTII without land in the same position as if he were an owner of an Old Schedule lot who could apply for an FBL. The different systems include: (a) public auction from around 1901 or 1902, (b) PTG from around 1909 until around the Second World War, (c) restricted village auctions from the late 1950s, and (d) PTG again from 1972 onwards.19 53.1. For (a), beginning in either 1901 or 1902, the Colonial

Government sold Crown land in NT to villagers via public auction. 20 The earliest primary documents recording such auctions dated back to 1904.

53.2. For (b), public auctions became unprofitable as village elders coordinated and ensured that there was only one bidder, and the land was sold at the upset price. Accordingly, in late 1908, the Colonial Government sought and obtained agreement from London (given in early 1909) to sell land via PTG at approved rates of premium and Crown rent to “bona fide applications from Chinese for their own occupation in place where there is not a likelihood of much development in the neighbourhood.” Between 1912 and 1921 around 82% of house-sites within villages were sold by PTGs. 21

19 [A/6/144-147, 171-174/CA§§59-66, 121-124]; CMY 2nd §§26-40; Hase/Davison

Report §§4(ii)-(iii), 5-6, 20-23. 20 ExCo Memo April 1957 §3(b) said it began in 1901; ExCo Memo June 1960 §3 said

it began in 1902. 21 Memos of 26 November, 4 December 1908 and 22 January 1909; Hase Report §§66-

67.

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53.3. For (c), after the Second World War, PTG apparently fell

into disuse and restricted village auctions resurfaced where villagers, like their forefathers at the turn of the century, organized themselves so there would be one bidder per lot who would acquire the land at the upset price. On the other side, the District Officers went to great lengths to “cook auctions in the most blatant manner until alienation is in practice by private treaty.” Government officials of this era regarded non-villagers who acquired land in these auctions as having abused the system.22

53.4. For (d), under the SHP, which regularized the land

policies with respect to villagers, the use of PTGs to replace the restricted village auctions was a reversion to the pre-Second World War system and a recognition that the auctions were PTGs in all but name.23

53.5. Crucially, the upset price and rent of the land sold were

concessionary. 24 Dr Hase demonstrated this by reference to the price of housing in other areas at the relevant time.25 On the implementation of the SHP, the price was fixed at 2/3 of the full market price, which was the upset price for restricted village auctions, and was consistent with the concession of FBL.26

22 Hase Report §§90-99; CMY 2nd §§36-39; Government memo from 1960s-1970s. 23 ExCo Memo 1972. 24 Hase/Davison §4(ii)-(iii). 25 Hase Report §§62-66, 73, 87, 89, 92. 95. 26 ExCo Memo 1972 §8(c).

23

53.6. The concessionary terms demonstrate convincingly that PTG (and the earlier systems of sale) was intended to benefit an eligible NTII who did not own any agricultural land in that he could, if permitted by the Government, acquire building land at a price commensurate to the costs he would have to incur had he acquired agricultural land and applied for FBL.

54. In view of the evidence summarized above, the rights and

interests enjoyed by an eligible NTII under FBL and PTG in the present land tenure are plainly “traditional” in the requisite sense.

E3. Land Exchange

55. CA correctly held (Judgment §§57, 125) that Land Exchange is constitutional. It is a land administrative instrument to give effect to the rights and interests of an eligible NTII applying for FBL. It is typically used to overcome common difficulties encountered (such as where the applicant’s land is too small or has an unsuitable shape).27 It is unnecessary for Land Exchange itself to satisfy the 4 constituent elements of BL40, bearing in mind FBL is constitutional.

F. APPELLANT’S ARGUMENTS F1. On “lawful” 56. The Appellant’s interpretation that “lawful” in BL40 means

equality, or that BL25 and BL39 should trump BL40, is plainly wrong. BL40 would be construed out of existence and its

[A/6/143, 174/CA§§57, 125]

27 CMY 2nd §56.

24

object would be frustrated. NTII’s rights and interests are inherently discriminatory and, on his interpretation, they would have to pass the justification test just to survive. This is clearly not constitutional protection and not what BL40 intended.

57. His interpretation falls foul of the fundamental tenets of constitutional interpretation that a BL provision must be construed in its context and purpose, that the BL must be read as a whole and that the general does not detract from the specific: Section C above. 57.1. It ignores the context and purpose of BL40 described

at Sections D1-D2 above, and notably, the important fact that notwithstanding NTII rights and interests are inherently discriminatory and infringe the equality principle (also proposed for enshrinement in the BL), and hence controversial, the BL drafters nevertheless opted to include BL40, and rejected the alternative route of excluding that provision.

57.2. In deciding to include BL40, the BL drafters must have intended that there should be constitutional protection, notwithstanding that the major objection to its inclusion in the BL was its discriminatory nature. It would be wholly contradictory to the purpose of BL40 to read it as containing a requirement that the protection afforded to the traditional rights and interests of a section of the public must be non-discriminatory.

25

57.3. The Appellant contends that a fundamental axiom of statutory interpretation is that a statute cannot be interpreted in such a way as to render the statute absurd (App Case §12.1). His interpretation would lead to an absurd result of effectively emasculating BL40. If it were intended that NTIIs’ rights and interests should be treated like any other instances of discrimination and be subjected to challenges under BL25 and BL39, it would not have been necessary to include BL40 in the first place.

57.4. Requiring, as a condition for protection, that NTIIs’

rights and interests must pass the justification test is also at odds with the intention (evident from BL40, BL120 and BL122) of affording constitutional protection to those rights and interests. The Appellant’s argument wrongly assumes it must be the Court that has the last word on whether the principle of equality is observed. As Matadeen p.109E-G points out, that is not necessarily so, and in the case of BL, the drafters had decided there should be constitutional protection of NTII’s lawful traditional rights and interests.

57.5. Further, the equality provisions in the BL (and also BOR)

are of general application and accordingly cannot be applied to trump BL40, which is of specific application inserted for a specific purpose. Thus, reliance on the use of the word “lawful” in other context or that it should (as stated in Yau Kwong Man) generally be interpreted broadly and expansively do not assist.

26

58. App Case §§18.2, 22 on the general meaning of the word “lawful”, with reference to the same word used in BL 35 and BL 140 but devoid of the relevant context and purpose, is demonstrably wrong. Context and purpose are the starting point in constitutional interpretation and the Court does not search for the natural and ordinary meaning of words in the abstract: Fully Profit (Asia) Ltd v SJ §15; Vallejos §§75-77 (CFA).28 This is also an instance where the general provisions do not override specific ones.

59. The Appellant’s argument that the language of BL40 is “clear” (App Case §4) or that the meaning is “plain” (App Case §12.3) is an attempt to divorce the language from context and purpose. Such an approach commits the same error identified in Vallejos §§75-77 of attempting to search only for the natural and ordinary meaning of words used and ignoring context and purpose. The Appellant has also failed to address the point made by Chow J (as he then was) at §128 which the CA endorsed at §126.

60. Bennion §11.9 states “where an enactment is grammatically capable of only one meaning (whether generally or in relation to the facts of the instant case) and, on an informed interpretation, the interpretative criteria do not raise any real doubt as to that meaning, the enactment is to be given its grammatical meaning.” It is plain that this statement does not apply to the language or the results of informed interpretation of BL40.

[A/1/87/ CFI§128] [A/6/174/ CA§126]

28 There are numerous examples where the Court arrived at a construction by

reference to context and purpose which a litigant would complain is not giving effect to the ordinary and natural meaning of the words used: e.g. Vallejos, GA, Comilang §64 (CA).

27

61. App Case §8 that CA effectively rendered “lawful traditional” otiose, or changed them to “unlawful” and “non-traditional” wholly ignores the reasoning of CA by reference to context and purpose. App Case §9 rightly states that the Respondents’ claim is that BL40 protects the SHP as opposed to a right to build village houses. That this is so because after the change in the system of land holding in the NT as explained by CA at §§38-47, a protection of a right to build as opposed to the protection of a right to apply would not be the protection of “lawful” traditional right.

62. App Case §20 distorts and misconstrues what CA held at Judgment §92. CA did not mean to say that it is not for the Court to adjudicate on what is meant by “lawful”. Indeed, they have given their meaning to that word (Judgment §§93, 126). What CA was saying is that it could not be the intention of BL40 that “lawful” can be determined at some other time than at the time of promulgation of the BL, for to so construe BL40 would result in much uncertainty and render the constitutional protection inefficacious. Under the second route, the time for determining “lawful” would be 1 July 1997.

63. App Case §23 based on Leung that legislation could be discovered after some time to be in contravention of the BL is not relevant to how BL40 is to be construed.

64. App Case §§24, 38 that it was not established that NTII rights and interests were discriminatory until shortly before the hearing of these proceedings completely ignores the fact that throughout the process of the enactment of what is now BL40, one of the main arguments of the proponents for its exclusion is its discriminatory nature.

[A/6/129-137/CA§§38-47] [A/6/160-161, 174/CA§§92-93, 126]

28

65. App Case §§24, 28 are misplaced. The statement on 17 April

1997 on the SDO exception was merely making the obvious point that interpretation of BL40 is a matter for the Court.

66. As for App Case §§25-26, the concept of living instrument is not a particularly apt notion to apply when one is dealing with a provision aimed at the protection of traditional rights and interests. Catholic Diocese of HK v Secretary for Justice was, of course, not about the construction of BL40.

67. In respect of App Case §§29-39: 67.1. Whether SHP is constitutionally protected turns on a

proper construction of BL40. Whether the PRC and UK Governments reached any agreement on the SHP is not the primary focus. At any rate, the CEDAW reservations plainly suggest there was agreement or consensus between the two Governments that the SHP should be exempted from discriminatory challenges.

67.2. The submission (App Case §32) that JD and BL122 did not mandate that the SHP must continue beyond 30 June 1997 and the submission (App Case §34) that it was to be left to the HKSAR Government to decide whether to continue the SHP does not meet the point that BL122 certainly assumes the validity (and hence the lawfulness) of small house grants after 30 June 1984 and at least up to 30 June 1997, and further contemplates the continuation of the SHP beyond 30 June 1997 (see CA Judgment §§79, 101). This of course supports the conclusion that BL40 mandates it.

[A/6/152, 164-165/CA§§79, 101]

29

67.3. The complaint (App Case §§33, 36) by reference to the

difference in language between BL40 and BL122 is plainly a bad point, and rightly rejected by CA (Judgment §§104-105). The point made in App Case §35 on how the NPC or BLDC could have drafted BL40 differently is equally bad. The question is not how BL40 could have been drafted to make plain that SHP shall continue. The question is what BL40, as it now appears, truly means.

67.4. The argument (App Case §39.3) that it was highly

improbable for the PRC and UK Governments to have agreed to preserve what was known to them to be inherently discriminatory when one of the basic policies was that all Hong Kong residents shall be equal before the law is a conflation of the specific with the general. Equality may be the basic policy, but JD Annex III §2 plainly reflected an agreement to afford a preferential treatment to a special class.

68. As for App Case §§40-51, see §§12-15 above. The drafting

materials are used to identify the subject matter that BL40 is directed at. They are not used to ascertain the meaning of BL40 or establish an “agreement from the BLCC or even the BLDC that the SHP…shall be protected by BL40”. Nor is it to examine whether the NPC or the BLDC had adopted the consultees’ views. It is immaterial whether the materials emanated from the BLDC or the BLCC, for the documents put beyond doubt that one of the subject matters that BL40 is directed at is the SHP.

[A/6/166/ CA§§104-105]

30

69. In relation to App Case §§18.4, 52-55: 69.1. That no reservation was made under the ICCPR in

respect of the SHP adds nothing to the discussion. Under the dualist principle, the ICCPR did not have the force of law in Hong Kong until it was incorporated into domestic law. The constitutionality of the SHP turns on a proper construction of the BL: in particular reading BL40 and BL39 together.

69.2. As discussed at §45 above, on a proper holistic and coherent reading of the BL, it excludes a constitutional challenge against the SHP on discriminatory grounds. It would be absurd if the opposite result could be achieved by reason of there being no ICCPR reservation.

69.3. Even supposing there is a conflict between BL40 and the ICCPR, and there is none when construed contextually and purposively, the Court’s duty is to interpret and apply the BL, regardless of whether the proper meaning would contravene an international treaty: R v Lyons §§27-28.

69.4. The CEDAW reservations are not post-enactment

materials under the alternative construction of BL40: §45 above.

F2. On “traditional” 70. App Case§57 that the rights and interests must be identical

ignores the important historical context, which is common knowledge and certainly known to the BL drafters, that the

31

Colonial Government introduced a new legal system and land tenure in NT, and that all rights and interests under Qing or customary law were extinguished. If it were intended that this change would break the tracing chain, there would not be any NTII rights and interests to protect. App Case §57.3 that the right created by legitimate expectation involves a circular argument because if the SHP is unlawful, it could not give rise to a legitimate expectation conflates “traditional” with “lawful”.

71. CA Judgment §§41, 123 affirmed the Judge’s finding that for many years before 1898 the rights and interests in connection with houses in villages were enjoyed by male villagers, and outsiders and women were generally excluded. The CFA has a well-settled practice of not reviewing a concurrent finding of fact in the absence of violation of some principle of law or procedure (which is not suggested here): Chinachem Foundation Ltd v Chan Chun Chuen §§40-44. Accordingly, it is not open to the Appellant to re-run the point at §57.5 of App Case: see McGraddie v McGraddie §§1-4.29 The same applies to Appellant’s contentions in §§57.8 (that the SHP was not implemented in recognition of traditional rights) or 57.9 (that there were clear breaks brought about by policy changes).

72. That the Colonial Government implemented SHP in recognition of traditional rights (App Case §57.8) is not a condition for satisfying the “traditional” element under BL40, although it

[A/6/130-133, 173-174/CA§§41, 123]

29 In any case, the evidence all support the Courts’ conclusion that, both before and

after 1898, women and non-villagers obtaining houses in villages were rare and regarded as anomalies. See Messer & Tsoi Memo 1900 (under “Chinese law regarding Land” and “Land Sales”); Orme Report 1912 §§92-94; Government Memo 1969; Hase/Davison Report §23.

32

constitutes evidence to show that the element is satisfied. In this regard: 72.1. It is an objective fact that the Colonial Government gave

all these concessions under a well-publicized policy to NTIIs, which non-NTIIs and women were not entitled to benefit from. Whether the concessions were motivated by political or other reasons is irrelevant.

72.2. In any case, the evidence shows that the SHP was implemented by the Colonial Government in recognition of the customary rights and interests practised by villagers in NT before the commencement of the NT Lease: CA Judgment §§51-52.

F3. On “rights and interests” 73. The question of whether an eligible NTII has a right to apply for,

or a right to build, a small house was specifically left open at first instance: CFI Judgment §§11, 38. In any event, the evidence clearly shows an eligible NTII (like his predecessors before the NT Lease) has always had only a right to apply for, and not a right to build, a small house: Section E2 above. CA was also plainly correct in rejecting the Appellant’s argument that a right to apply is not a right and interest in the context of the first constituent element of BL40: Judgment §§113-115.

G. STANDING 74. Standing turns on whether an applicant has sufficient interest

in the matter to which the application relates: s.21K(3) of HCO; O.53 r.3(7). It is acutely sensitive to context (which is multi-

[A/6/140-141/CA§§51-52] [A/1/10-11, 25/CFI§§11, 38] [A/6/169-170/ CA§§113-115]

33

faceted) and depends on what the rule of law requires in all the circumstances. It cannot (as Question 2 seems to suggest) be answered in the abstract. Further, it is a wrong question to ask whether an applicant is a “victim”.

75. The legal principles have been comprehensively summarized by CA in Kwok Cheuk Kin v LegCo President §§22-28. We highlight the following.

76. First, whether there is sufficient interest is intimately connected with, and must be considered by reference to, the purpose of judicial review, i.e. vindicating the rule of law by ensuring that public authorities act according to law: AXA General Insurance v HM Advocate §170; Kwok Cheuk Kin §§26, 28. In other words, whether a particular applicant should be given standing in a specific case depends on whether this is required by the rule of law.

77. Second, standing is based on the concept of interests and not rights. Unlike private law actions, the Court’s function in judicial review is not to protect private rights and redress individual grievances: AXA §§63, 169-170; Walton v Scottish Ministers §90.

78. Third, the question of standing is context-specific, and cannot be considered in the abstract or as an isolated point. The Court will look at all the relevant circumstances of the case and balance the pertinent factors. The relevant factors may include: merits, the importance of vindicating the rule of law, the importance of the issues raised, the existence or absence of other challengers with greater interest, the content of the respondent’s duty, the nature of the public law wrong

34

complained of, the relief sought. See Kwok Cheuk Kin §§22, 24-27; IRC v National Federation of Self Employed and Small Businesses at 630D-E, 635F, 654H, 656D,659A, 662G; De Smith’s Judicial Review (8th Ed) §2-025.

79. Fourth, without limiting the generality of the first three points, a distinction may be drawn between two types of cases. In many cases, where the decision affects the applicant’s personal interest over and above that of the general public or a section of the public, the applicant should have little difficulty establishing sufficient interest. But for some decisions, it may not be possible to identify any class of persons who are more affected than the public at large. 79.1. For the first type of cases, the rule of law (or indeed

public interest that public bodies should act lawfully and fairly) does not of itself require that the decision be challengeable by any member of the public. If no one in the class of persons more directly affected is prepared to bring a challenge, it can be properly assumed, without offending the rule of law, that there is no need for the Court to entertain one. R (McCourt) v Parole Board §§43-44; R (D) v Parole Board §§105-112; Rape Crisis Centre Company v Home Secretary p.544.

79.2. Therefore, the fact that there are, or would be, better placed challengers would militate against any other general member of the public being accorded standing: Durayappah v Fernando 352G-353B; Hoffmann-La Roche v Trade Secretary 366D-E; Tsang Kwong Kuen v Finance Committee Chairman §44(7).

35

79.3. For the second type of cases, the applicant is effectively

pursuing the application as a representative of public interest, and the Court adopts a holistic approach and balances the considerations identified at §24(2)-6) of Kwok Cheuk Kin in deciding whether to accord standing.

80. The victim test propounded by the Appellant appears to be

taken from s.7 of the Human Rights Act 1998 and art.34 of the European Convention on Human Rights.30 Leaving aside that “victim” is not used in our statute, as CA mentioned (Judgment §134), which App Case §§61, 63, 66 accept, the Appellant has no interest in the SHP beyond that of an ordinary citizen. Accordingly, he is not even a victim under the UK/ECHR test as a person is only regarded as a victim of a discriminatory policy if he has done something which identifies him as having wished to make a claim under the policy: R (Hooper) v Work and Pensions Secretary §§56-57.

81. Similarly, it cannot be said that the Appellant’s right and interest to equality is infringed in the abstract. The reliance of Moore is misplaced. It provided that a person is discriminated against when he actually suffers a detrimental result (eg a tangible detriment or some adverse psychological impact), not vice versa.

82. On the facts, CA was plainly correct that the Appellant has no locus and there is no basis for this Court to intervene. To say the least, there are better placed challengers (eg female NTII or non-NTII wanting to acquire a house in NT village area) who

[A/6/176/ CA§134]

30 It is said that this test is more stringent than the test for standing in judicial review:

Fordham, Judicial Review Handbook (7th Ed) §38.4; Lewis, Judicial Remedies in Public Law (6th Ed) §11-027.

36

have not thought it necessary to impugn the SHP and accordingly, the rule of law does not require to accord the Appellant with standing. This is not a case where an applicant pursues an application as a representative of public interest.

H. RELIEF31 83. The short answer is provided in s.21K(6) of HCO and O.53 r.4(1).

It prescribes that where the Court considers there has been undue delay in applying for judicial review, it may, in its discretion, refuse either leave or relief if it considers the granting of relief sought would be likely to cause substantial hardship to, or substantially prejudice the right of, any person or would be detrimental to good administration: R v Dairy Tribunal ex p Caswell 746D-G, 747G-H. The interest in good administration “lies essentially in a regular flow of consistent decisions, made and published with reasonable despatch; in citizens knowing where they stand, and how they can order their affairs in the light of the relevant decision” (p.749H).

84. In a case such as the present where there has been phenomenal delay in challenging a public policy on the ground of it being unlawful, there is a clear tension between the principle of certainty and the principle of legality. The precise balance between the interests of good administration in legal certainty and the principle of ensuring public bodies do not act unlawfully will depend on the context and all the factors involved in the particular case: Lewis, §12-010. It is a multi-faceted question and there cannot be any hard and fast rule (as

31 Questions 3-4 proceed on the assumption that the Court has jurisdiction to grant

prospective relief: cf HKSAR v Hung Chan Wa §§17-18, 28-33. Given (a) the right to apply under the SHP is protected by BL40 and (b) it is inappropriate to grant relief in this case, it is not necessary for this Court to deal with the issue of jurisdiction.

37

Questions 3 and 4 seem to suggest there is). In the present case, CA is entitled to consider that the balance falls against the grant of relief: §132.

85. The Appellant’s authorities do not detract from the above:

85.1. In Leung, Ma CJHC stated (§39(1)) that delay remains a

relevant factor in a case concerning the constitutionality of a statute but it may not be as compelling a consideration provided that the applicant has an arguable case and sufficient interest. In other words, it all depends on the facts.

85.2. Additionally, Leung is distinguishable because if the statute were not declared unconstitutional, the applicant, a practising homosexual, would forever be under the risk of criminal prosecution whereas the Appellant does not suffer such predicament.

85.3. It was precisely because the applicant had sufficient

interest that this Court held (§39(2)) that the time factor was not of great significance as another person with sufficient interest may come along in future to make the same challenge. By contrast, the Appellant here does not have sufficient interest and the fact that someone else who may have sufficient interest may decide to challenge the SHP in the future cannot cloak him with locus. Instead, it is a factor militating against according him locus: §79.2 above.32

[A/6/175-176/CA§132]

32 See also R (Delve) v Work and Pensions Secretary §126.

38

85.4. Tsang (§§65-68) was about whether a discriminatory policy should be regarded as a continuing act for the purpose of the limitation provisions in the SDO. The Court was not concerned with discretion on whether to grant remedy in judicial review.

85.5. In Leigh, there was no discussion whether discretion

should be exercised to refuse relief on the ground of delay.

85.6. Hilditch is irrelevant: it was a case where the Court

refused a renewed application for permission to apply for judicial review as there was an alternative remedy.

85.7. Ward was decided on its own facts as the Court granted

prospective declaration of unlawfulness after being satisfied there would be no harm in doing so (§37). It is not an authority that the Court is not entitled to refuse relief on the ground of delay or that it is not entitled to refuse prospective relief on the basis of hardship, prejudice or detriment to good administration.

86. The Appellant has failed to identify any reason why CA was

plainly wrong in its alternative finding (Judgment §§130-132) that it would have exercised its discretion against granting relief. Consequently, there is no reason for this Court to interfere: Shiu Wing Steel Ltd v Director of Environmental Protection §§102-103. Notably: 86.1. There is a clear public interest that any challenge

against public bodies should be brought expeditiously: A v Essex CC §116. The respect that must be paid to time

[A/6/175-176/CA§§130-132]

39

limits laid by the rules applies at least equally to public interest litigator, lest there be abuse: Fishermen and Friends of the Sea v Environmental Management Authority §§21-32.

86.2. The fact that the SHP is a continuing policy does not render it irrelevant to take into account the date on which the breach began when considering the issue of delay in determining whether to exercise discretion to grant relief: De Smith §16-058; R v Essex CC ex p C; Delve §129.

86.3. The Appellant does not dispute CA’s finding that granting relief, in face of such phenomenal delay, would be contrary to good administration generally and land administration in NT specifically going forward, which is an established ground to refuse relief: Caswell 749H-750B.

86.4. Contrary to App Case §75, relevant substantial hardship

and prejudice may include cases where expenses were incurred and positions were taken prior to and after the commencement of proceedings on the assumption that the impugned decision is lawful: R (Gavin) v Haringey BC §§58-77. Accordingly, CA was right to consider the predicaments of eligible NTIIs and their families who thought the SHP is constitutional.

86.5. Even where only a forward-looking declaratory relief is

sought, the claim needs to be brought expeditiously to ensure the public authorities and the public have certainty as to the legal validity of their actions: A v

Essex CC §116; R (Burkett) v Hammersmith LBC §§44,

64.

I. CONCLUSION

87. For these reasons, these appeals should be dismissed with

costs (including costs here and below) to the Respondents.

14 September 2021

MOK YEUK-CHI

ANTHONY CHAN

Counsel for the Respondents

40