Curtail Kuk over housing - experts
As the supply of land runs out in Hong Kong's rural areas, the city's top legal experts believe the government is entitled to curtail indigenous villagers' right to cheap land under the controversial small house policy.
The policy has long been contentious and incoming chief executive Leung Chun-ying told the South China Morning Post pre-election that he intended to 'settle' the issue.
But rural powerbrokers the Heung Yee Kuk regard a provision of the city's mini-constitution, under which 'the lawful traditional rights and interests of the indigenous inhabitants of the New Territories shall be protected', as a legal guarantee of the continuation of the policy, set up by the British colonial government.
Under the small house policy, each male villager, at the age of 18, is granted the right to build a threestorey house of no more than 2,100 sq ft, either on ancestral land or on government land purchased for about two-thirds of the market value.
But the practice is widely abused, with villagers, some of whom do not live in Hong Kong, selling on their right to build the home as soon as they receive the paperwork from the government. And rural land is rapidly running out, with just one-third left of the original 4,960 hectares of land made available for small houses, according to the Development Bureau.
The Post spoke to some of the city's most knowledgable experts and law professors about the issue. All say the policy should be reviewed.
The academics also say the protection of 'traditional rights' must be understood in a historical context.
Professor Johannes Chan Man-mun, dean of law at the University of Hong Kong, said the 'traditional rights' referred to in Article 40 of the Basic Law could be traced back to 1898, when British colonial officials took control of rural areas after the New Territories was leased to Britain.
The practice of granting a site for a male villager's home is not protected by the law, as land grants for small houses were only introduced around 1950, with the policy formalised in 1972. 'It is clear that the [policy's] original purposes - of preserving family property and cohesiveness of an indigenous village - are no longer relevant,' Chan said, referring to cases of villagers selling houses for a quick profit. 'It must be possible for the government to change its policy to meet changing social conditions.'
Lands Department records show 470 villagers were granted permission to sell homes built under the policy in the financial year to April 1 last year, paying HK$426 million - the difference between the subsidised price of the land and full market value - to the government to do so.
From April to December, 359 sales were approved, with the government receiving HK$394 million. Villagers selling homes on ancestral land must pay the full land premium if they sell within five years. Those building on government land must pay the difference between the subsidised purchase price and the full market value.
Malcolm Merry, an HKU law professor specialising in land disputes, who has served as a judge on the Lands Tribunal, went even further. He said abolishing the small house policy altogether - regardless of whether the house is built on private or government land - would be in accordance with the Basic Law. 'The modern three-storey village house did not exist until 50 years ago and is the product of District Lands Office permissions, not custom,' he said, adding that houses built before 1898 were genuinely small, of about 434 sq ft, and were on villagers' own land.
David Akers-Jones, who served as secretary for New Territories under the British, also advocates a radical policy rethink. He said small houses were out of the central administration's control as they are exempt from building laws. Their monitoring was left in the hands of district officers, who were not professionals.
But kuk chairman Lau Wong-fat rejected the scholars' interpretations. 'The tradition of building small houses is legal,' he said. 'It has been recognised in previous court cases.'
Houses built for newly married sons before 1898 were genuinely small - about this many square feet - and they occupied private land