For example, ancient monuments are governed under the Ancient Monuments and Archaeological Areas Act 1979, listed buildings (similar to graded buildings here) and conservation areas are governed by the Planning (Listed Buildings and Conservation Areas) Act 1990. Anyone who wants to demolish, alter or extend a listed building is required to obtain a listed building consent from the relevant authorities. In Hong Kong, graded buildings do not enjoy such protection. Ho Tung Gardens, which is not a declared monument, does not get statutory protection.

Leaving aside the issue of grading, how is the interest of the heritage building owner balanced with conservation? Given the lack of cases in Hong Kong, we must refer to cases from other jurisdictions. The Penn Central Decision is a landmark 1978 US Supreme Court case that is a useful one. The court upheld the legitimacy of historic preservation review ordinances and granted the government the right to establish controls to which the owners of historic property would be subject.

Whilst US case law has no binding effect on Hong Kong courts and every case should be decided on its own facts, the outcome of the Ho Tung Gardens affair is uncertain. The Antiquities and Monuments Ordinance provides that the owner may, by petition to the chief executive, object to the declaration of Ho Tung Gardens as monuments and the Chief Executive in Council will make the decision, which is final. The ordinance says nothing about whether the owner has the right to make representation in any inquiry hearing.

The Ho Tung Gardens incident reveals the deficiency of our heritage preservation law, which has become obsolete since its enactment in 1976. I consider that draftsmen of our legislation should seriously consider reviewing and updating it.

Yvonne Leung, Mid-Levels