Small House Policy Only Partially Lawful: Court

The High Court ruled on Monday that the practice of allowing male indigenous villagers to build small homes in the New Territories without paying hefty land use conversion fees is constitutional – but only if the houses are constructed on private land, not plots obtained from the government.

It was a rare partial victory for "King of judicial reviews" Kwok Cheuk-kin, who brought the legal challenge along with social worker Hendrick Lui, but the outcome was also welcomed by the Heung Yee Kuk, which works to protect the rights of New Territories villagers.

Kwok and Lui had argued that the arrangement discriminates against women, who aren't entitled to build the small homes, as well as people who aren't classed as being "indigenous". It therefore breaches articles 25 and 39 of the Basic Law, they said.

The pair had also claimed that the government is failing in its duty under Article 7 to manage the city's land resources for the benefit of all Hong Kong people.

But Judge Anderson Chow noted that the crux of the matter was not whether the small house policy is discriminatory, as male villagers are clearly given preferential treatment and the policy is exempted from the Sex Discrimination Ordinance.

He said the real question he had to address was whether the rights are traditional and lawful and are traceable to before 1898 when the New Territories were leased to Britain.

"In all, I am of the view that the Ding rights in the form of Free Building Licence is a lawful traditional right and interest of the New Territories indigenous inhabitants within the meaning of Basic Law Article 40, but not Private Treaty Grant or exchange," Chow wrote in his judgement.

Between 1972, when the small house policy was introduced, and June last year, more than 28,000 Free Building Licences were issued for villagers to construct a home of up to three storeys on their own private land.

Meanwhile, some 14,000 houses were built on government land via the Private Treaty Grant, or after land was exchanged with the government.

Chow said the judgement would not take effect until six months' time, in view of the importance of the matter to villagers and the general public, the implications it could have on government land administration, and due to the likelihood of an appeal.

The lawyer representing the Heung Yee Kuk, Alfred Lam, said it was important that the court had confirmed the basic rights of indigenous villagers.

"I think, to a certain extent, the lawful rights and the interests of the indigenous villagers are clearly protected under the judgement," Lam said.

Kwok, meanwhile, said he believes the judge's decision will bar villagers from using their Ding rights to allowing others to build small houses.

Despite his partial win, he said he would seek an appeal against the ruling.