Hong Kong villagers’ rights to tiny houses fully restored after Court of Appeal overturns earlier ruling

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Appeals judges overturned a lower court ruling to restore the rights of indigenous male villagers to build three-story houses on space-constrained private and public land in Hong Kong.

The Court of Appeals ruled on Wednesday that the small house policy based on the so-called villagers of the New Territories ding law was “constitutional in its entirety,” allowing them to continue building houses not only on land they owned, but also on plots traded with, or granted by, the government.

A 2019 High Court ruling on policy deprived them of the right to exercise these exclusive privileges on public lands.

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The latest 69-page judgment, written by the Chief Justice of the High Court, Judge Jeremy Poon Shiu-chor, concluded that the practice of granting public land to villagers to build houses could date back to the early 20th century. , and the ding this right came under “the legitimate traditional rights and interests of indigenous villagers, giving them the right to constitutional protection in their entirety, despite their inherently discriminatory nature” on the grounds of sex, birth or social origin.

Ding refers to male offspring in Chinese and is used to denote the exclusivity of native males.

The judge also noted in his ruling that the initial legal challenge, mounted four decades after the policy was put in place, had been “seriously delayed” and caused harm not only to villagers wishing to build a house, but also to administrators. land.

Small house policy: why not all Hong Kong people are born equal

The two applicants, social worker Hendrick Lui Chi-hang and former civil servant Kwok Cheuk-kin, told the To post 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 organize itself to resume processing applications for construction on government land.

Kenneth Lau Ip-keung, chairman of Heung Yee Kuk, the powerful body for rural affairs, welcomed the judgment. “I’ve heard some describe it as a ‘big win’ for us… but the judgment is actually good for all of Hong Kong,” he said at a press conference.

“The small houses provide residences for villagers in the new territories and can also help solve Hong Kong’s housing problem,” he added, urging authorities to reconsider a long-standing proposal for small multi-story houses. to save land resources.

The Hong Kong appeals court issued its ruling on Wednesday afternoon. Photo: Roy Issa

The appeal was brought after none of the parties – the petitioners, the government and the kuk – were satisfied with the partial approval of the policy by the Court of First Instance in 2019, and all parties contested decision.

The landmark case centers on the colonial government’s cottage policy, implemented in 1972 with the aim of controlling squatter problems and improving housing in the new territories.

Since then, he has made it possible for every indigenous villager descending from the male line to apply – at the age of 18 – to request the construction of a small house of no more than three stories and each story measuring no more than 700 square feet.

The government has long recognized the need to revisit policy, which has been criticized for being discriminatory and subject to abuse, and is widely viewed as unfair in a city that is constantly hungry for space.

The court challenge was first launched 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 argued that the policy was unconstitutional because it discriminated on the basis of a person’s sex, birth or social origin.

Small house policy is not a traditional villager’s right, historical hearing says

At the previous hearing before the court of first instance, the question was whether the practice fell within the “legitimate traditional rights and interests of indigenous inhabitants” protected by Article 40 of the Basic law, the mini-constitution of the city.

After examining the history of land administration in the New Territories – from the time immediately preceding their leasing to the British by China in 1898 – Judge Anderson Chow Ka-ming concluded that among the three main forms of land granted under the policy, only building permits on land owned by the applicant at zero premium, more commonly referred to as free building permits, were tracked at that time.

But there was no evidence that the other two forms – private treaty grants and exchanges – were introduced in recognition of a previously held right, and therefore they were unconstitutional.

The former grants appropriate public land at a concession premium, which is about two-thirds of the market rate, while the latter allows a villager whose land is not large enough or of an appropriate form to cede it in exchange of better ground.

However, the three appeals court judges on Wednesday overturned Judge Chow’s previous ruling, ruling that both forms of land grants were also legal.

While private treaty grants could date back to 1909, land swaps, introduced later, were a “practical way to overcome common difficulties” faced by villagers, they noted.

An aerial view of low-rise village houses in Yuen Long.  Photo: Winson Wong

An aerial view of low-rise village houses in Yuen Long. Photo: Winson Wong

Between 1972 and 2018, the government approved 42,678 applications for small houses, of which 14,373, or 33 percent, were built on land other than that of the villagers.

Addressing the issue of gender discrimination, the judges noted that the drafters of the Basic Law, Hong Kong’s mini-constitution, had recognized the legality of ding rights despite “heated debates on their discriminatory character”, and therefore politics “deserves full constitutional protection”.

At the end of the judgment, Poon also ruled that the two plaintiffs did not have sufficient standing to bring judicial review, as they had no demonstrated interest in land in the new territories.

But Brian Wong Shiu-hung, a member of the civic group Liber Research Community, which focuses on land issues, said the judge’s remarks about the applicants’ lack of standing were “shocking.”

“The ding Law affects every Hong Kong citizen as it competes with other land uses for land resources. The government had to set aside a lot of space in the new towns for the villagers to build their houses, while the land could have been better used for higher density developments, ”he said. “How can the court say we have no interest in this case?” “

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