Small-house policy not discriminatory because not all Hongkongers are eligible in first place, government argues in judicial review hearing
- Not all Hongkongers enjoy the rights of New Territories’ indigenous inhabitants, senior counsel Benjamin Yu tells court
A contentious policy that allows male indigenous villagers to build a house and not pay a land fee is not discriminatory because not all Hong Kong residents are eligible for such rights in the first place, the High Court heard on Tuesday.
Government lawyers put forward counter-arguments on the second day of a judicial challenge to the “small-house policy”, initiated by former civil servant Kwok Cheuk-kin and social worker Hendrick Lui Chi-hang.
The policy, enacted in 1972 under British colonial rule as a temporary housing measure, allows male, adult indigenous villagers to build a three-storey house within a recognised New Territories village or agricultural land without having to pay a land-use conversion fee. Such a fee would be hefty under today’s high property values.
Kwok and Lui claim the policy is discriminatory as it is based on a person’s descent and sex and thus unlawful as it contravenes Article 25 of the Basic Law, which stipulates all residents shall be equal before the law. The Basic Law is Hong Kong’s mini-constitution.
They also refute claims the policy is a right covered by Basic Law Article 40, which states that the lawful traditional rights and interests of indigenous inhabitants must be protected.
Martin Lee Chu-ming SC, representing the challengers, said the small-house policy discriminated against New Territories indigenous female villagers and non-indigenous villagers and did not comply with Article 40, which defines what rights are subject to protection.
He questioned why, if the Basic Law’s drafters had intended to protect the policy as a right, it was not included in any of the draft’s wordings.
Lee added that if the small-house rights were protected under Article 40, then the drafters must have also considered that the policy would be inconsistent with Article 25.
“[The drafters would be] preserving what would effectively be an unlawful and unconstitutional policy,” he told the court.
Benjamin Yu SC, for the government, argued that Article 40, like general principles of any constitutional document, were written to be broad.
Yu conceded that Article 40 did not fulfil the principles of Article 25 but did not have to provide for equal treatment as not all Hongkongers enjoyed the rights of New Territories’ indigenous inhabitants.
“Why is it discriminatory, if [one has] no right? You only have the right if you are eligible … and under the policy not everyone is eligible,” Yu said.
He said Lee could not even prove unlawfulness under laws during the Qing dynasty – which ruled Hong Kong before it became a British colony – because the Qing Code did not have a law preventing discrimination.
He also said Article 122, concerning land leases involving small houses, was based on the Sino-British Joint Declaration, and this conferred the policy lawful recognition under the Basic Law.
Meanwhile, Lee argued that indigenous land rights could not be traced back to the Qing dynasty because they were merely “customary” practices presided over by villager elders and not enforced by official Qing laws.
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 hearing was expected to last eight days.