Hong Kong’s High Court finally decided that it is constitutional for male indigenous villagers to build three-storey houses in the New Territories once in their lifetime, but they cannot do so on government land.
The court upheld so-called “ding rights” that allow male indigenous villagers to build houses on private land but also decided it is unconstitutional for the government to grant or swap land with them to facilitate the exercise of such rights.
The landmark ruling on the much-debated Small House Policy was delivered on April 8. Back in 2015, Mr Kwok Cheuk-kin filed a judicial review to challenge the long-established practice.
Under the practice, villagers who do not own land can buy a plot from the government for two-thirds of the market price or, if they do own some land that is not suitable to build housing, they can apply to exchange it for another plot.
Both options – building by private treaty and land exchange – are now considered unlawful. Following the ruling, villagers will only be allowed to build houses on their own land at zero premium through a free building licence.
Following the ruling, the Development Bureau immediately suspended two projects that would have allowed indigenous villagers to build 113 small houses in Pai Tau and Sheung Wo Che in Shatin and Ha Mei San Tsuen in Yuen Long.
The judicial challenge centers on the interpretation of “lawful” and “traditional” rights in Article 40 of the Basic Law. The article 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.”
Mr Justice Anderson Chow Ka-ming said a traditional right has to be “traceable to the rights or interests of the New Territories indigenous inhabitants before the commencement of the New Territories Lease in 1898.”
He said the free building licence can be seen as a traceable right as “ this form of land grant by the government, which started in about 1906, was made on the understanding that prior to the New Territories lease, the villagers were entitled to build houses on their land without having to seek approval of, or make any payment to, the Imperial authorities.”
Mr Brian Wong Shiu-hung, a member of the Liber Research Community, argued that the ruling defines the “ding right” as merely the right to apply for a free building licence and that the “traditional right” means the right to apply to build a house, not to build one.
He said the government can reject applications and it should review applications more carefully to determine if the house is for the applicant’s own use.
The Small House Policy was implemented in 1972 when Hong Kong was still under British rule. It allows male indigenous villagers aged 18 who can trace their ancestry back to a traditional village in 1898 to build a three-storey small village house with each floor measuring 700 square foot at most.
The policy was originally intended as an interim measure to gain support from powerful rural groups in order to get land in the New Territories to build new towns.
Nothing so permanent as a temporary measure
But the policy originally intended as a stop-gap measure has now been in place for 46 years, outlasting colonial rule. It has never been challenged or revoked before.
Villagers who benefit from the policy have long been criticized for secretly selling their house-building rights to developers for large profits.
As of September 2017, the government had approved 42,000 applications to build small houses on 200 hectares of land.
Monday’s ruling also throws into question what the 900-hectare reserve of rural land, known as “Village Type Development” zones where villagers can build their houses, can be used for.
Critics say that the land can now be used for housing development, a criticism that Chief Secretary Mr Matthew Cheung Kin-chung refuted. He said the land is not suitable for such a purpose.
“This means many of [the land] are alleyways between houses, idle land, slopes and pavement,” he said. “The potential for development and building houses is not big.”