NT small-house rights upheld on appeal

Local | Sophie Hui 14 Jan 2021

All existing practices allowing male indigenous villagers to build houses are constitutional, the court of appeal has ruled.

Under a 1972 policy, a male villager can apply for permission to build once in his lifetime a three-story small house within his village, colloquially called "ding rights".

Three options are available for one to exercise ding rights - through a private treaty grant, whereby the government offers land at a premium two-thirds of the market price to a villager to build a house; free licenses that allow one to build houses on private lots without paying a land premium; and a exchange whereby one can switch plots with the government to build houses.

"King of judicial reviews" Kwok Cheuk-kin and social worker Hendrick Lui Chi-hang filed a judicial challenge against ding rights in 2015 as they felt the policy discriminates against non-indigenous and female indigenous villagers.

In April 2019, high court judge Anderson Chow Ka-ming ruled that only the second option for the villagers to build houses on private land was lawful.

But yesterday a three-strong appeal panel comprising high court chief judge Jeremy Poon Shiu-chor, court of appeal vice president Johnson Lam Man-hon and justice of appeal Thomas Au Hing-cheung said in a 69-page judgment Chow failed to consider the Basic Law articles in context.

They said it is "beyond doubt" that ding rights were recognized in the city's legal system as lawful traditional rights and interests of the indigenous inhabitants of the New Territories during the drafting stage of the Basic Law despite debate about their discriminatory nature.

The judges said Chow had failed to take into account a number of factors, including a "phenomenal delay" of the legal challenge as the small house policy was introduced in 1972, while the Hong Kong Bill of Rights was enacted in 1991 and the Basic Law has been applied to the city for 23 years.

"The lack of explanation for such a delay is simply glaring," they said.

Heung Yee Kuk head Kenneth Lau Ip-keung welcomed the ruling but hoped the government could resume handling such applications as soon as possible.

A Development Bureau spokesman said they will study the judgment and resume accepting and handling applications under the Private Treaty Grant and Land Exchange arrangements.

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