Hong Kong Basic Law

Controversial small-house policy was never traditional right of indigenous male villagers in Hong Kong, landmark hearing told

  • Qing dynasty laws did not forbid females or outsiders from acquiring land in New Territories villages, senior counsel Martin Lee argues
  • Barrister says he has never handled a case where most people are discriminated against
PUBLISHED : Monday, 03 December, 2018, 8:59pm
UPDATED : Tuesday, 04 December, 2018, 11:08am

The exclusive right of Hong Kong’s male indigenous villagers to build homes without paying a land fee is not part of the indigenous traditions the law protects, the High Court heard on Monday at the start of a landmark case.

The judicial review hearing, which poses one of the most serious challenges to the government’s protection of the privilege, comes amid a heated public debate over how to source more land to solve the city’s housing crisis.

The scheme being challenged, known as the small-house policy, has been widely criticised for being unfair to most Hong Kong people amid high property prices and shrinking living spaces.

The judicial review was initiated by former civil servant Kwok Cheuk-kin, who was later joined by social worker Hendrick Lui Chi-hang. The hearing was expected to last eight days.

The respondents include the director of lands, the chief executive and Executive Council, and the secretary for justice.

“I have never done a case where the majority [of Hong Kong people] are the victims of discrimination,” Martin Lee Chu-ming SC, representing Kwok and Lui, told the court on Monday.

Lee said the exclusive right being challenged was not part of the “lawful traditional rights and interests” of the indigenous inhabitants of the New Territories that shall be protected as stipulated in the Basic Law’s Article 40, the major provision supporters of the small-house policy cite.

The Basic Law is the city’s mini-constitution.

Serial litigant undeterred by funding block for house policy challenge

Lee, citing rural history experts Dr Patrick Hase and Professor Cheung Sui-wai, said the laws in the Qing dynasty, which ruled Hong Kong before it became a British colony, did not forbid females or outsiders from acquiring land in New Territories villages.

Lee said the policy to allow indigenous villagers to build homes on farmland without having to pay a fee for the conversion of land use did not emerge until the British colonial government began to rule the New Territories in 1898.

The colonial government enacted the small-house policy in 1972 as a temporary measure, allowing male, adult indigenous villagers to build a three-storey house within a recognised New Territories village or on agricultural land without having to pay a land use conversion fee. Such a fee would be hefty under today’s high property values.

Let the city’s courts decide on small-house policy

“We could not find even in the Qing law [evidence] in relation to the small-house policy,” Lee said. “It is not a traditional right or interest of the indigenous villagers, not to say of male indigenous villagers.”

Lee said the policy was discriminatory as it was based on a person’s descent and sex, which was “unconstitutional” as it was against Basic Law Article 25, which stipulates all residents shall be equal before the law.

He added that the policy was also inconsistent with Article 7, which stipulates that all land and natural resources in the city shall be state property, and the government shall be responsible for their management, use and development.

Representatives from the Heung Yee Kuk – a powerful advisory body that represents rural interests and has been the main defender of the policy – attended the hearing.

“The outcome of this challenge directly affects hundreds of thousands of indigenous villagers … and future generations,” kuk chairman Kenneth Lau Ip-keung said.

Lau said he had no comment on the case but would face it with a “positive and optimistic attitude”. He added that indigenous villagers “firmly believed” their rights were protected by Article 40.