Appeal judges have overturned a lower court ruling to reinstate male indigenous villagers’ full rights to build three-storey homes on both private and government-sourced land in space-starved Hong Kong.
The Court of Appeal ruled on Wednesday that the small-house policy based on New Territories villagers’ so-called ding right was “constitutional in its entirety”, allowing them to continue building houses not just on land they owned, but also on plots swapped with, or granted by, the government.
A High Court ruling in 2019 on the policy had stripped them of the right to exercise those exclusive privileges on public land.
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The latest 69-page judgment, penned by Chief Judge of the High Court Mr Justice Jeremy Poon Shiu-chor, concluded that the practice of granting public land to villagers to build homes could be traced back to the early 20th century, and the ding right fell “within the indigenous villagers’ lawful traditional rights and interests entitling them to the constitutional protection in full, despite their inherently discriminatory nature” on grounds of sex, birth or social origin.
Ding refers to male offspring in Chinese and is used to denote exclusiveness to indigenous men.
The judge also noted in ruling that the initial legal challenge, mounted four decades after the policy was put in place, was “seriously delayed” and had caused prejudice not only to villagers expecting to build a house, but to land administrators as well.
The two applicants, social worker Hendrick Lui Chi-hang and former civil servant Kwok Cheuk-kin, told the Post on Wednesday that they intended to take the case to the Court of Final Appeal.
The Development Bureau, meanwhile, said it would study the judgment and then arrange to resume processing applications for building on government land.
Kenneth Lau Ip-keung, chairman of Heung Yee Kuk, the powerful body on rural affairs, welcomed the judgment. “I heard some describe this as a ‘big win’ for us … but the judgment is actually good for the whole of Hong Kong,” he said at a press conference.
“Small houses provide residences for New Territories villagers and can also help solve Hong Kong’s housing problem,” he added, urging officials to reconsider a long-shelved proposal for multistorey small houses to save land resources.
The appeal was brought after none of the parties – the applicants, the government and the kuk – were happy with the partial endorsement of the policy by the Court of First Instance in 2019, and all parties challenged the decision.
The landmark case centres on the colonial government’s small-house policy, implemented in 1972 with the purpose of controlling squatter issues and improving housing in the New Territories.
Since then, it has allowed each indigenous villager descended from the male line to – on reaching the age of 18 – apply to build one small house with three storeys at the most and each floor measuring a maximum of 700 sq ft.
The government has long recognised the need to review the policy, which has faced criticism for being discriminatory and prone to abuse, and is widely seen as unfair in a city constantly hungry for space.
The judicial challenge was first mounted in 2015, after 11 indigenous villagers were jailed for up to three years for a scam in which they sold their land rights for profit.
The applicants’ lawyers had argued the policy was unconstitutional because it discriminated based on a person’s sex, birth or social origin.
At the previous hearing at the Court of First Instance, the issue was whether the practice fell within “the lawful traditional rights and interests of the indigenous inhabitants” protected by Article 40 of the Basic Law, the city’s mini-constitution.
After examining the history of land administration in the New Territories – starting from the time immediately before it was leased to the British by China in 1898 – Mr Justice Anderson Chow Ka-ming concluded that among the three principal forms of land granted under the policy, only building licences on plots owned by the applicant at nil premium, more commonly known as free building licences, were traceable to those days.
But there was no evidence that the other two forms – private treaty grants and exchanges – were introduced in recognition of any previously held right, and therefore they were not constitutional.
The former grants suitable government land at a concessionary premium, which is about two-thirds of the market rate, while the latter allows a villager whose land is not large enough or of a suitable shape to surrender it in exchange for a better plot.
However, the three appeal court judges on Wednesday overturned Justice Chow’s previous decision, finding that these two forms of land grants were also lawful.
While private treaty grants could be traced back to 1909, land exchanges, introduced later, were a “practical way of overcoming common difficulties” encountered by villagers, they noted.
Between 1972 and 2018, the government approved 42,678 small-house applications, of which 14,373, or 33 per cent, were built on land other than the villagers’ own.
Addressing the issue of sex discrimination, the judges pointed out that the drafters of the Basic Law, Hong Kong’s mini-constitution, had recognised the lawfulness of ding rights in spite of “the heated debates about their discriminatory nature”, and therefore the policy “merits constitutional protection in full”.
At the end of the judgment, Poon also ruled that the two applicants did not have sufficient standing to bring the judicial review, as they did not have any demonstrated interest in land in the New Territories.
But Brian Wong Shiu-hung, member of the civic group Liber Research Community, which focuses on land issues, said the judge’s remarks on the applicants’ lack of standing were “shocking”.
“The ding right affects every Hong Kong citizen as it competes with other land uses for land resources. The government has had to reserve lots of space in new towns for villagers to build their homes, while the land could have been better used for higher-density developments,” he said. “How can the court say we have no stake in the issue?”
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