Top court upholds Small House Policy in full

Hong Kong’s top court has upheld the exclusive right of male indigenous villagers to build their own homes under the Small House Policy, saying the policy is constitutional in its entirety.

The policy, which dates back to 1972, allows for three-storey houses to be built on private land.

Male villagers can also lease land from the government at a concessionary premium through the Private Treaty Grant system, or via land exchange agreements with the administration, also for a reduced premium or none at all.

Kwok Cheuk-kin, known as “the king of judicial reviews”, had challenged the policy, arguing that it is discriminatory on the grounds of social origin, birth or sex.

He gained a partial victory when a lower court ruled that it is constitutional for villagers to build these houses on private land, but not thanks to private treaty grants or land swaps.

The Court of Appeal, however, overturned that ruling earlier this year, a move the Court of Final Appeal has now ruled was correct.

A five-judge panel led by Chief Justice Andrew Cheung declared that the so-called ding rights fall within the traditional rights and interests of indigenous New Territories villagers as listed under Article 40 of the Basic Law.

“The Court of Appeal was correct to find that the word ‘traditional’ in Article 40 of the Basic Law is to be determined by reference to the state of affairs in April 1990, and does not require that a protected right or interest be traceable to the period before 1898,” the judges wrote.

“In line with the principle of continuity, the fact that only male descendants of pre-1898 villagers were eligible under the policy was part of the description of the system which the HKSAR inherited and which Article 40 intends to protect.”

The judges also dismissed the applicant’s argument that the policy is discriminatory.

“‘Lawful’ in Article 40 of the Basic Law is not intended to refer to the absence of discrimination forbidden by Article 25 and 39 of the Basic Law and Article 22 of the Bill of Rights, whose application in the special context of indigenous rights is excluded by Basic Law Article 40.”

The top court, however, disagreed with the Court of Appeal which had pointed to a “glaring delay” in this legal challenge.

The Court of Final Appeal judges said the rule that judicial reviews must be brought promptly has never been absolute.

In response, the government said it welcomes the ruling and will continue to receive and process small house applications in accordance with the policy.