Legal Affairs EP04 | Albert Chen: Small House Policy upheld by Basic Law

Kwok Cheuk-in, dubbed "the king of judicial review" in the local community, earlier filed a case in the Court of Final Appeal (CFA) to challenge the Small House Policy, claiming that it is discriminatory and does not fall under the "lawful traditional rights and interests of the indigenous inhabitants of the New Territories" as protected by Article 40 of the Basic Law.

The Court of Final Appeal (CFA) last week ruled against Kwok's appeal, upholding the lawfulness and compatibility of the policy with the Basic Law.

Regarding this issue, we invite Professor Albert Chen, Senior Consultant of the Hong Kong Legal Exchange Foundation and member of the National People's Congress HK Basic Law Committee, to explain to us the rationale behind the rulings.

The policy has been implemented since 1972. The forms of grants under the policy include Free Building License which allows applicants to build small houses on their private land, Private Treaty Grant for grant of government land to build small houses, and Land Exchange.

Professor Chen pointed out that Article 40 of the Basic Law stipulates that the lawful traditional rights and interests of the indigenous inhabitants of the New Territories shall be protected by the HKSAR. The relevant provision has been controversial since it was drafted and enacted in 1990, he said.

Professor Chan said that at the policy level, it is discriminatory and the courts have recognized this. On the trial of this case, Professor Chen mentioned that the Court of First Instance and the Court of Appeal adopted different approaches to interpreting Article 40 of the Basic Law regarding the definition of "lawful and traditional."

What is the rationale behind the rulings of different courts? Watch the video now to find out.