Court backs male villagers on small house policy but landmark ruling says 'ding rights' apply only to private - not government - land

Top News | Phoenix Un 9 Apr 2019

The High Court has ruled that the practice of allowing male indigenous villagers to build houses is constitutional - on condition it is on private land and not government land.

In the landmark ruling concerning "ding rights" - those enjoyed by the beneficiaries of the Small House Policy - Justice Anderson Chow Ka-ming ruled on whether three practices whereby villagers can build their own houses fall within the Basic Law's Article 40.

The policy, which has applied since December 1972, recognizes a long-established system that allows a male villager to apply for permission to build once in his lifetime a small house within his village.

Article 40 states that "the lawful traditional rights and interests of the indigenous inhabitants of the New Territories" are protected.

The three practices are the private treaty grant, whereby the government offers land with a premium two-thirds of the market price to a villager to build a house; free building licences that allow villagers to build houses on private land without paying a land fee; and a land exchange whereby villagers can switch plots with the government to build houses. Only the second option is lawful.

So-called "King of the Judicial Review" Kwok Cheuk-kin and social worker Hendrick Lui Chi-hang filed for a judicial review in 2015 and were listed as applicants. The director of Lands, the Chief Executive-in-Council and the secretary for justice were respondents. The Heung Yee Kuk was lan interested party.

Chow ruled that the real issue whether the three policies were constitutional was whether ding rights could be "traditional" and "lawful" as stated in Article 40.

To be a traditional right, Chow said, "it has to be shown the right or interest in question is traceable to the rights or interests of the New Territories indigenous inhabitants before the commencement of the New Territories Lease in 1898." That was when Britain leased the New Territories for 99 years.

Chow ruled that the free building licence can be regarded as a traceable right as this form of land grant by the government, which started in about 1906, was made on the understanding that prior to the New Territories lease "villagers were entitled to build houses on their land without having to seek approval of, or make any payment to, the Imperial authorities."

Although details of the licence granted by the government have changed over time, Chow found the original basis on which free conversion of agricultural land into building land was permitted by the government was unchanged.

But the same could not be said of a private treaty grant, Chow said, finding that villagers did not have a right to acquire land to build houses prior to the 1898 lease at a concessionary rent.

But Chow did not address another issue that Kwok and Lui raised - that ding rights discriminate by gender. Chow believed it was clear at the time of its drafting that some rights in the Basic Law's Article 40 might be open to objection on the ground they were discriminatory.

Kwok said after the verdict that he would consider filing an appeal against the notion that ding rights are traditional.

A Development Bureau spokesman said experts would consider whether to appeal after studying the verdict relating to two small house construction methods being unconstitutional.

And Heung Yee Kuk chairman Kenneth Lau Ip-keung said he is "worried, sad and sorry" about the judgment, and the kuk will discuss an appeal.

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