The High Court is set, for the first time, to hear a judicial review launched against the rights of rural villagers to build houses in the New Territories. The case could end a colonial-era policy and free up land in Hong Kong suburbs.

The legal proceedings on the review case started December 3.

A bit of history

The policy — known as the “Small House Policy” —was implemented when Hong Kong was still under the British rule. It allows male indigenous villagers aged 18 or over, and who can trace their ancestry back to a traditional village in 1898, to build a three storey village house.

In 2015, a Hong Kong resident filed a judicial review to challenge the long-standing policy. The plaintiff, Mr Kwok Cheuk-kin, is arguing that the policy grants male villagers from the New Territories more rights than other Hong Kong residents have and is therefore unconstitutional. Mr Kwok is asking for the policy to be revoked.

Mr Martin Lee, a lawyer and the founding chairman of the Democratic Party, is representing Kwok.

“Never, in a case I have handled, have I seen most of Hong Kongers are victims,” says Mr Lee.

Mr Lau Yip-keung, a lawmaker from the village council group Heung Yee Kuk, says he is optimistic that the government will win the case but expects that Mr Kwok will seek an appeal and that it will take one or two more years to close the case.

““[The case] will intensify the confrontation between the city and the rural side,” Lau says.

The dispute centers on the interpretation of “lawful” and “traditional” rights in Article 40 of the Basic Law, which stipulates that “the lawful traditional rights and interests of the indigenous inhabitants of the New Territories shall be protected by the Hong Kong Special Administrative Region.”

Critics argue that the policy is discriminatory against women and goes against Article 25 of the Basic Law that guarantees all Hong Kong residents shall be equal before the law.

Supporters counter, claiming that those “lawful traditional rights” in Article 40 include house-building rights and that it should not be affected by other articles.

The policy has been heavily criticized in light of Hong Kong’s worsening housing problem. As many as 209,700 people live in subdivided flats and the average living area per capita stands at 47.8 square feet on average.

In contrast, male villagers can build 2,100-square foot houses consisting of three floors each of 700 square feet. They have the right to build these houses in “Village Type Development” zones that currently cover 900 hectares of government land that is unleased and unallocated. Once built, they are frequently rented out or sold on. Houses inherited can be sold – and the male lineage can build new houses.

At the same time, the government is struggling to find 1,200 hectares of land to build additional housing and has even proposed to reclaim land around Lantau Island.

Critics also say the villagers secretly sell their house-building rights to developers for big profits.

This year, the Task Force on Land Supply proposed increasing the density of these zones. Land advocates say the move shows the government does not intend to scrap the small house policy.

“Temporary measures” are built to last

When introduced in 1972, the small house policy was intended to be an interim measure to gain support from powerful rural groups for new town development in the New Territories. However, the policy has been in place for 46 years.

Think tank Civic Exchange also wrote in a 2003 report that this policy would have to be scrapped, eventually.

“Over the long term, the small-house policy is fundamentally unsustainable. Sooner or later, the government has to make a decision to repeal the policy, and the longer the government procrastinates, the more intractable the problem becomes for the future,” it said.

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