Hong Kong’s highest court has affirmed that a colonial-era policy which allows male indigenous villagers in the New Territories – but not women – to develop small village houses is constitutional.

Court of Final Appeal
Court of Final Appeal. File Photo: Kelly Ho/HKFP.

The Court of Final Appeal ruled in favour of the government and the Heung Yee Kuk on Friday, by upholding an appeal court’s decision in January that the policy was constitutional.

Appellant Kwok Cheuk-kin, nicknamed the “king of judicial review,” argued that the policy was discriminatory and violated the Basic Law, as it only benefited male villagers. The government and the Heung Yee Kuk, however, argued that Article 40 of the Basic Law protects the rights that Hongkongers traditionally enjoy.

The Court of Final Appeal judges said they agreed with the government’s position, that the small house policy is an administrative discretionary right protected under Article 40. As long as it is exercised legally, such a right would not violate the Basic Law’s Article 25, which states that all Hong Kong residents shall be equal before the law.

Village houses on Peng Chau Island
Village houses on Peng Chau Island. File Photo: Tom Grundy/HKFP

While Article 25 was a provision asserting general rights for all Hongkongers, Article 40 was “a specific provision dealing with the special position of the indigenous inhabitants of the New Territories.” The latter’s application therefore excludes protections against discrimination which are generally applied.

“Absent [Article 40], all the various advantages enjoyed by the indigenous inhabitants of the New Territories would be inherently discriminatory unless they can be objectively justified as being necessary in pursuit of a legitimate aim,” the judgement read.

Special privileges

Under the policy, male indigenous descendants of recognised village families may apply to build a small house of up to three storeys. Villagers can apply for “free building licences” if they own their own land, or opt to exchange land with the government to obtain a suitable plot. If they are not landowners, indigenous residents can use “private treaty grants” to get the government to allocate land to them at a discounted rate.

Critics slam the policy, introduced in 1972 by the British colonial government, as discriminatory against women and wasteful of land in space-starved Hong Kong, where more than 200,000 people are on the waiting list for government-subsidised public housing.

Kwok cheuk kin
Kwok Cheuk-kin. Photo: Stand News.

Kwok filed a legal challenge in 2015 seeking to abolish the policy, which applies only to the New Territories, as unconstitutional. Social worker Hendrick Lui later joined Kwok’s case.

In 2019, High Court judge Anderson Chow first ruled that “private treaty grants” and “exchanges” were unconstitutional, but he upheld the “free building licence” as a lawful and traditional right of New Territories indigenous inhabitants. That decision was however overturned.

Judgement welcomed

Kwok, the appellant, said he was “quite surprised” by the result. “Why would I lose?” Ming Pao quoted him as saying, adding that he would seek interpretation from the National People’s Congress, China’s top legislative body.

A government spokesperson said it welcomes the court’s judgement. “The Government will continue to receive and process small house applications in accordance with the Policy, and give due regard to various considerations in the course of processing them,” a statement said.

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Selina Cheng is a Hong Kong journalist who previously worked with HK01, Quartz and AFP Beijing. She also covered the Umbrella Movement for AP and reported for a newspaper in France. Selina has studied investigative reporting at the Columbia Journalism School.