The Use and Misuse of the Lex Specialis Principle in Hong Kong’s Fundamental Rights Adjudication

Abstract Lex specialis derogat legi generali , the principle that special law prevails over general law, is a well-established doctrine for resolving conflicts between legal norms. Yet its application in fundamental rights adjudication remains underexplored. This Article contributes to this global discourse by examining the increasing invocation of this principle in Hong Kong courts. It scrutinizes the deployment of the principle in landmark cases: resolving the tension between indigenous inhabitants’ rights and the right to equality in Kwok Cheuk Kin v. Director of Lands ; balancing freedom of marriage against equality in Sham Tsz Kit v. Secretary for Justice ; and, as advanced by the Government, justifying the exclusion of married same-sex couples from public housing and inheritance entitlements in The Hong Kong Housing Authority v. Infinger, Nick and Secretary for Justice v. Li Yik Ho . Through a comparative jurisprudential analysis, this Article argues that the application in Kwok Cheuk Kin was legally sound, whereas its use in Sham Tsz Kit was problematic. Furthermore, it contends that where different constitutional instruments provide varying levels of protection for human rights, absent a clear legislative intent to the contrary, courts should uphold the higher standard of rights protection rather than relying on the lex specialis principle.