On the Interpretation Method of "Legitimate Traditional Rights and Interests" in the Case of Kwok Cheuk Kin v. Director of Lands of the Hong Kong Court of Final Appeal
Abstract
The New Territories Small House Policy allows male indigenous villagers to apply, it has sparked debates on resource allocation and gender discrimination along with urbanization. The Kwok Cheuk Kin case became a landmark case in the Court of Final Appeal for fully reviewing the constitutionality of this policy. This article focuses on the court's reasoning in that case, tracing how judgments evolved across different court levels and analyzing the Court of Final Appeal's interpretation of 'lawful traditional rights' under Article 40 of the Basic Law. The findings show that the Court of Final Appeal set the time point for defining 'traditional' at the 1990 enactment of the Basic Law, limited 'lawful' to procedural compliance, applied special laws over general laws, and considered Article 40 to take precedence over equality provisions. Although it acknowledged that the policy objectively discriminates, it avoided a substantive human rights review under the proportionality principle, forming a judgment pattern of 'acknowledge discrimination, effectively avoid it.' This ruling stemmed from judicial restraint and separation of powers considerations, leaving policy adjustment responsibilities to the administration and legislature. The article reveals how Hong Kong courts technically handle conflicts between historical privileges and human rights.
References
- Goo, S. H. (2014). The small house policy and tso and tong land. In H. Fu & J. Gillespie (Eds.),Resolving Land Disputes in East Asia: Exploring the Limits of Law(pp. 374–391). Cambridge University Press.
- Goo, S. H., & Lee, H. (2020). Lawful traditional right and sustainability: An unbalanced interest in the customary Ding right in Hong Kong?Hong Kong Law Journal, 50, 961.
- Liu, K. T., & Lai, L. W. C. (2026). The small house. InPrinciples of Land Administration at Work: The Hong Kong Practice(pp. 173–180). Singapore: Springer Nature Singapore.
- Lu, S. Y. (2026). Women's rights under the small house policy in Hong Kong.Gender & History, 38(1), 370–389.
- Dupré, J. F. (2023). Urban development and land controversies in rural Hong Kong: An indigenous rights perspective. InRights and Urban Controversies in Hong Kong: From the Eastern and Western Perspectives(pp. 49–67). Singapore: Springer Nature Singapore.
- Thayer, J. B. (2017). The origin and scope of the American doctrine of constitutional law. InBills of Rights(pp. 293–320). Routledge.
- Chan, J. (2023). Responsive judicial review without democracy: The Hong Kong experience.Hong Kong Law Journal, 53(2), 507–538.
- Fuller, L. L., & Winston, K. I. (1978). The forms and limits of adjudication.Harvard Law Review, 92(2), 353–409.
- King, J. (2008). The pervasiveness of polycentricity.Public Law, 101–124.
- Coxon, B. (2022). Beyond the basic law: Interpretive principles protective of fundamental rights in Hong Kong.Cardozo International & Comparative Law Review, 51(4), 248–267.
- Lao, M. M. (2013). Small house policy II: An update.Civic Exchange.
- Hyatt, C. J. (2020). Hong Kong small house policy: Modernity, crisis, morality & policies for repair.Cardozo International & Comparative Law Review, 4, 763.