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LCQ9: Ho Tung Gardens

Following is a question by the Hon Abraham Shek and a written reply by the Secretary for Development, Mrs Carrie Lam, in the Legislative Council today (November 23):

Question:

It has been reported that following the Government's formal declaration of Ho Tung Gardens as a monument on October 24 this year, and due to the fact that an agreement of a proposed land exchange between the Government and its owner has not been reached so far, it is estimated that an amount of $3 billion of taxpayers' money (in terms of Ho Tung Gardens' redevelopment value) might prospectively be incurred to compensate its owner in respect of the financial loss suffered or likely to be suffered by her. In this connection, will the Government inform this Council:

(a) of the number of private properties that were declared monuments under the Antiquities and Monuments Ordinance (Cap. 53) (the Ordinance) in the past three years, together with the details of the compensation or land exchange arrangements made in each case; whether it has made reference to any overseas example in which similar compensation was made for monument preservation when it considered Ho Tung Gardens' case; if it had, of the details; if not, the reasons for that;

(b) given that Article 105 of the Basic Law stipulates that "the Hong Kong Special Administrative Region shall, in accordance with law, protect the right of individuals and legal persons to the acquisition, use, disposal and inheritance of property and their right to compensation for lawful deprivation of their property", whether it has assessed if the declaration of any private property as a monument without having obtained the owner's consent would be in contravention with the Basic Law; if it has assessed that this would not, of the reasons for that, and whether it has considered establishing an appeal mechanism under the Ordinance to form an independent jury to review the decision made by the Government; if it has, of the details; if not, the reasons for that; and

(c) whether it has assessed if there might be the possibility of judicial review applications to challenge decisions of the Government with regard to the declaration of private properties as monuments on the ground of the stipulation under Article 105 of the Basic Law; if so, whether it has put in place any measure to minimise such possibility, including but not limited to legislative amendment; if it has, of the details; if not, the reasons for that?

Reply:

President,

First of all, I would like to point out that I, in my capacity as the Antiquities Authority, simply consulted the Antiquities Advisory Board on the suggestion of declaring Ho Tung Gardens as a monument according to section 3(1) of the Antiquities and Monuments Ordinance (the Ordinance) on October 24, 2011. Such suggestion still needs to go through the existing statutory procedures before Ho Tung Gardens will be declared as a monument. Besides, we have never conducted an assessment on the financial loss that may be suffered by the owner of Ho Tung Gardens. The so-called "an amount of $3 billion of taxpayers' money might prospectively be incurred" is just an estimate floating in the community.

My reply to the three parts of the question is set out below:

(a) Since 2008, a total of seven private properties have been declared as monuments. They are Maryknoll Convent School, King Yin Lei, Residence of Ip Ting-sz, Yan Tun Kong Study Hall at Ping Shan of Yuen Long, Tung Wah Museum, Man Mo Temple on Hollywood Road and Tang Kwong U Ancestral Hall at Kam Tin of Yuen Long. Apart from the land exchange in the case of King Yin Lei as economic incentive provided by the Government to the owner for preserving the historic building, no compensation or land exchange arrangements were involved in the other six cases.

The land exchange for King Ying Lei was conducted in accordance with the Government's heritage conservation policy established in September 2007 on the provision of economic incentives to encourage or in exchange for private owners to conserve historic buildings in their ownership. No public money was involved. We are discussing possible preservation options with the owner of Ho Tung Gardens in accordance with the same set of policy and with utmost sincerity. In formulating the heritage conservation policy mentioned above, we have made reference to overseas experience, and the conclusion was that heritage authorities seldom spend large public sums in exchange for the title of or right to use privately-owned historic buildings, and are seldom involved in cash compensation. Of course, we have also given due considerations to the circumstances of Hong Kong, and that the price which the public in general are willing to pay for heritage conservation. In applying the "economic incentives" policy, we have to take into account a multitude of factors, and that the nature of each case is different.

(b) The Ordinance will not take away the owner's title to the property which has been declared as a monument. The Ordinance also does not substantially interfere with the concerned owner's property rights or take away or restrict the concerned owner's right to alienate the property. Therefore, the current practice of declaring private properties as monuments does not constitute "deprivation" of the property of individuals and legal persons under Article 105 of the Basic Law, and thus does not involve a right to claim compensation under Article 105 of the Basic Law. Besides, the Ordinance has already struck a fair balance between the protection of individual's property rights and public interest. Based on the above reasons, the current mechanism of declaring privately-owned historic buildings as monuments does not contravene the Basic Law.

As mentioned above, at present, the Antiquities Authority has to consult the Antiquities Advisory Board on her intention to declare any place, building, site or structure as monuments, and the concerned owner or lawful occupier can raise objection to the intended monument declaration in accordance with the existing statutory procedures. According to section 4 of the Ordinance, if a place, building, site or structure intended by the Antiquities Authority to be declared a monument is situated on private land, the Antiquities Authority shall, prior to the making of the declaration, serve on the owner and any lawful occupier of the private land a notice in writing of her intention to declare a monument therein. Within one month, or such longer period as may be allowed by the Chief Executive in any particular case, after the service of the notice, the owner or lawful occupier may object by petition to the Chief Executive to the intended declaration. The Chief Executive, upon considering an objection made, may direct that (i) the intended declaration shall not be made or (ii) the objection be referred to the Chief Executive in Council. If the objection is referred to the Chief Executive in Council, the Chief Executive in Council may direct that (i) the intended declaration be made by the Antiquities Authority; (ii) the intended declaration be so made, subject to such variations or conditions as he thinks fit; or (iii) the intended declaration shall not be made. The decision of the Chief Executive in Council to declare a place, building, site or structure as a monument is amenable to judicial review.

We consider that the mechanism mentioned above is appropriate. Therefore, we have no plan to form an independent jury to review the Government's decisions on monument declaration.

(c) The current practice of declaring private properties as monuments does not contravene the Basic Law. Nevertheless, in formulating the heritage conservation policy, we have sought to strike a fair balance between respecting private property rights and heritage conservation, including adopting the highly flexibly practice of "economic incentives" to encourage or in exchange for private owners to conserve historic buildings in their ownership. In the past few years, we have effectively conserved many historic buildings with this initiative. We strongly believe that these successful examples have reduced by a large extent the number of legal actions which may be taken by owners to challenge the Administration's decisions.

Ends/Wednesday, November 23, 2011
Issued at HKT 15:21

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