The High Court has struck down two of the three methods under the Small House Policy by which male indigenous villagers can build houses without paying a land premium.

Under the Small House Policy, male indigenous villagers who are descendants of a male line from a recognised village may apply to build a small house of up to three storeys.

A home may be constructed on the villager’s own land at zero premium – known as the “free building licence.” Alternatively, a villager can exchange his non-village land for government land, or he can apply for a private treaty grant to build on government land, at a concessionary premium.

In his 96-page judgment, Judge Anderson Chow ruled on Monday that “private treaty grants” and “exchanges” were unconstitutional. However, the “free building license” was upheld as a lawful traditional right of the New Territories indigenous inhabitants.

Kwok Cheuk-kin. Photo: Holmes Chan/HKFP.

The legal challenge was filed in 2015 by activist Kwok Cheuk-kin – nicknamed the “king of judicial review” – who sought to abolish the policy as unconstitutional. Social worker Hendrick Lui later joined Kwok’s case.

After the Monday ruling, Kwok said he would definitely appeal the case as he was only “partly satisfied” with the outcome.

Alfred Lam, an ex officio councillor of the Kuk, said that the ruling was a victory because its practical impact on villagers will be minimal.

“The two methods were out of use for a long time,” Lam said, referring to private treaty grants and exchanges. “Where can you find government land to be sold to you? And exchanges take a long time.”

“Most of the time, it is the free building license… the judge said definitively that this type was not open to judicial review, and that this was the lawful traditional right of indigenous villagers,” he added. “If you want a simple answer as to whether we won, then for this aspect we won, because in reality there is only this method.”

He said that the Kuk will decide its next move after a meeting on Monday afternoon.

Alfred Lam and Daniel Lam of the Heung Yee Kuk. Photo: inmediahk.net.

The court said on Monday that its judgment will not take effect for six months, given the importance of the matter and the likelihood for further appeal.

‘Attack with ulterior motives’

In a hearing last December, the applicants’ lawyer Martin Lee argued that the Small House Policy was only enacted by the colonial government in 1972 as a temporary measure. In addition, the policy was unconstitutional because it discriminated on the basis of sex and descent, Lee said.

“I have never done a case where the majority [of Hongkongers] are the victims of discrimination,” Lee told the court at the time.

The policy is often criticised for being sexist and open to abuse, with some landowners illegally transferring their land rights to developers for profit.

The Heung Yee Kuk, a group which represents the rural clans, have previously condemned the lawsuit as “an attack with ulterior motives” on villagers. Kenneth Lau, the lawmaker for the Kuk, said that the Small House Policy was enshrined under Article 40 of the Basic Law.

Article 40 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.

However, Lee argued at the December hearing that it was not part of the “lawful traditional rights and interests” of villagers to build homes without paying a land fee, since the policy was not rooted in any historical tradition.

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