Region: Asia
Year: 2010
Court: High Court of the Hong Kong Special Administrative Region Court of First Instance Constitutional and Administrative Law
Human Rights: Right to health, Right to housing
Tags: right to housing
A number of different applicants opposed the Government’s order to resume their land. In 2009 the HK Government made an order for the resumption of various plots of land in Tsz Tin Tsuen as the land was needed for public housing. The plots were held by way of lots granted under a Block Crown Lease as agricultural land but the use of the land had been converted to other uses, including structures being built on some parts of the land. The villagers were entitled to compensation under the Lands Resumption Ordinance and ex gratia payments. Varying amounts of ex gratia payments were offered to the villagers, but the villagers found that the offers were too low. The villagers were also concerned about alternative accommodation as they argued the compensation would not be adequate for them to purchase another private property of comparable character, size and location in the market.The villagers were seeking to challenge their eviction by judicial review and wished to reach a satisfactory settlement to enable each applicant to relocate.
KEY LEGAL PROVISIONS:
Article 29, The Basic Law- The homes and other premises of Hong Kong residents shall be inviolable. Arbitrary or unlawful search of, or intrusion into, a resident’s home or other premises shall be prohibited.
Article 14, Hong Kong Bill of Rights
Protection of privacy, family, home, correspondence, honour and reputation
(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
(2) Everyone has the right to the protection of the law against such interference or attacks.
Articles 29 (Basic Law) and 14 (HKBOR)
The Court held that the Government was not required to provide alternative accommodation of comparable character, size and location before eviction under these Articles. Unconstitutionality of Section 6 of Land (Miscellaneous Provisions) Ordinance The Court held that the constitutional challenge to Section 6 of the Land Resumptions Ordinance is in substance a challenge based on Article 10 (Equality before Courts and rights to a public hearing) of the Hong Kong Bill of Rights and that the decision made re: the resumption of the land in this case can be fully investigated within the confines of judicial review proceedings. In addition, conventional public law grounds can also be dealt with in the context of judicial review. The Court held that Section 6 was not unconstitutional given that judicial review could properly address all possible challenges. It does not matter that the Director need not come before the court to get an order for possession before issuing a clearance notice.
Wednesbury unreasonableness or disproportionateness re: applicants being rushed to accept compensation package
Given that interim housing was offered and the applicants therefore had somewhere alternative to live this was found not to be the case. The right under the Articles is not a right to alternative accommodation to the satisfaction of those evicted. In conclusion, the issue of the Clearance Notice was not so unreasonable or disproportionate that no reasonable authority would have done the same.
Para 83: Further, the nature of the Articles 29 (Basic Law) and 14 (Hong Kong Bill of Rights) right has to be borne in mind. As highlighted by Baroness Hale, the right under these Articles does not confer any right to health or welfare benefits or to housing. Whilst the court will take
into account the availability of compensation and alternative accommodation and other welfare
needs of the applicants on a macro level in the determination of the reasonableness (including the proportionality) of the interference (with a view to see the interference is arbitrary and unlawful), there is no requirement that all these needs must be met to the reasonable satisfaction of the applicants before they could be displaced. The consideration has to be applied on a macro level when the court is dealing with a challenge under these two Articles because as far as the housing and welfare needs of those suffered from resumption are concerned, there are regimes (both statutory and non-statutory) in Hong Kong.