Court Of Appeal Restores Ding Rights In Full

The Court of Appeal on Wednesday restored the full rights of male indigenous villagers to build their own homes, as it overturned a lower court's ruling that narrowed the Small House Policy.

The policy, which dates back to 1972, allows for three-storey houses to be built on private land.

Alternatively, male adult villagers could lease land from the government at concessionary premium through the Private Treaty Grant System, or via land exchange agreements with the administration, also for a reduced premium or none at all.

In April 2019, the Court of First Instance ruled that while it's constitutional for the villagers to build these houses on private land, Private Treaty Grants or land exchanges were not in line with the meaning of Article 40 of the Basic Law, because they were not part of the "traditional rights".

The ruling came after Kwok Cheuk-kin, known as "the king of judicial reviews," along with social worker Hendrick Lui Chi-hang filed a judicial review against the policy, on the grounds that it discriminates against non-indigenous people as well as female indigenous villagers.

They also argued that the policy led to the government's failure to develop land for the benefit of all Hong Kong residents.

The government and the Heung Yee Kuk, meanwhile, had both accepted that the policy is inherently discriminatory on the grounds of social origin or birth and sex, but argued that it nevertheless is one of the "lawful traditional rights and interests" of indigenous villagers in the New Territories protected by Article 40 of the Basic Law.

Both sides appealed, with Kwok's lawyer saying the entire Small House Policy should be declared unconstitutional, as the so-called "ding rights" are not rights at all but a "completely discretionary government policy", and they are not traditional either, as they cannot be traced back to the time before the New Territories became part of the British colony in 1898.

The government and the Kuk, meanwhile, said private treaty grants and land swaps were both means to achieve the legal and long-held custom of building houses for those who owned land outside of their villages or plots that were not in a suitable shape.

The three-judge appeal court panel ruled that it is "beyond doubt" that the ding rights were regarded as lawful and traditional even during the drafting stage of the Basic Law, despite the debates about their discriminatory nature.

The panel ruled that the original trial judge had not considered the relevant Basic Law article contextually.

The judges also said there's a "glaring" delay in the legal challenge given the policy was introduced in the 1970s. They said the policy has been "consistently and regularly applied".

"Many eligible [New Territories Indigenous Inhabitants] and their families have conducted affairs on the basis that the Small House Policy is a lawful policy, with an expectation of being able to build a small house in future. The prejudice caused to them is on any view huge", the judges noted in the written judgement.

The delay also affects "land administration" they said, adding that the trial judge had failed to take into account all these factors.

The judges also said that the two applicants simply do not have any standing to apply for the judicial review, being as they don't have any actual or potential interest in any land in the New Territories.