The Ding Uk Saga: Development of New Territories Indigenous Inhabitants' Property Rights
Ambrose Wai Ching Ho University of Oxford
This submission involves the Court of Appeal’s recent decision in Kwok Cheuk Kin and Lui Chi Hang, Hendrick v Director of Lands, Chief Executive in Council & Secretary for Justice  HKCA 54. It addresses this decision as a case study into the interaction between pre-colonial ways of life in Hong Kong and the subsequent constitutional legislation (the Basic Law and the Bill of Rights) that has been passed. In short, this case involved a judicial review application brought by Kwok Cheung-kin (“the applicant”) against the Hong Kong government’s Small House Policy (“SHP”). The SHP allows an eligible male indigenous inhabitant of the New Territories (“NTII”) to apply for permission to build for himself a small house once during his lifetime. The applicant contended that the policy is unconstitutional; the Court of Appeal found against the applicant. Why are the NTII rights given such powerful constitutional protection, to the extent that the entire Small House Policy was upheld despite its discriminatory effect? The historical examination carried out by the Court demonstrates the conflict between the common law principles introduced by the Basic Law on one hand, and the traditional customs and practices enjoyed by NTII on the other. This case illustrates the powerful transformative effect of colonial administration on land-holding practices within the New Territories, which clashed with the Basic Law’s attempt to codify NTII rights in Hong Kong’s modern constitutional system.