The Small House Policy, also known as "ding right," enjoyed by male indigenous villagers discriminates against the majority of Hongkongers and women, the High Court was told yesterday in the first judicial review of the policy.
Under the policy, an indigenous male villager aged 18 or above and descended through the male line from a resident in 1898 of a New Territories village, may apply to the Lands Department once during his lifetime for permission to build for himself a small house on a suitable site in his own village. Such villagers are called "ding" in Chinese.
Kwok Cheuk-kin, nicknamed "the king of judicial reviews," filed for a judicial review challenging the policy. He was joined by another applicant, social worker Hendick Lui Chi-hang, after Kwok was refused legal aid for the case.
Respondents included the Director of Lands, the Chief Executive in Council and Secretary for Justice. Heung Yee Kuk was listed as a stakeholder. The hearing started in the High Court yesterday. Representing Kwok, Senior Counsel Martin Lee Chu-ming said the policy runs against the constitution as the government treats people with different ancestors differently. It also discriminates against female indigenous villagers.
Land resources should not belong to a particular class, Lee said, adding the policy strained government's land use.
Lee said the policy is just an administrative one, not a statutory one. He said even former chief justice Andrew Li Kwok-nang misunderstood that ding right is protected under the Basic Law.
Article 40 of the Basic Law states that the lawful traditional rights and interests of the indigenous inhabitants of the New Territories shall be protected by the SAR. Lee said the clause does not mention that "ding right" is a traditional right, nor did it say ding right should be enjoyed only by men.
Everyone should be equal before the law, according to the Basic Law, but the policy clearly discriminates against women, Lee said.
Although the problem of land lease had been discussed before the handover, the Small House Policy was never written into the constitution.
Lee said the policy was a temporary measure carried out by the government in response to housing needs of indigenous villagers back in 1972. But with the introduction of public housing, there is no need to continue this policy any more.