As controversy continues to rage over illegal structures and land use, Evan considers the Small House Policy, and the history behind it and the relationship between the villagers of the New Territories and the government. There was always Two Systems in operation. Sadly he sees that it is the urban system of liberal values and rule of law that is under greater challenge today.
編按：非法僭建與佔用土地的爭議繼續升溫之下， Evan 認為這種爭議源於丁屋政策、背後的歷史與新界村民與政府之間的關係——香港一直以來都有兩種制度並行。而丁權正正衝擊自由主義價值觀與法治城市體系，使到今天的香港正處於更大的挑戰之中。
The door opens on to a private balcony. My host, an elderly and soft-spoken gentleman, ushers me forward. It is the fourth floor, and from this elevated position I can look across the garden walls at much of the neighbouring houses that align this quiet cul-de-sac in one of Hong Kong’s wealthier enclaves.
The house I am in is easily over 4,000 square foot in size, with several large extensions and a conservatory. There is also a separate outbuilding housing a double garage and storerooms to the front, and amah’s quarters to the back. All this sits comfortably in a mature garden overlooked by four large palm trees.
The neighbouring houses, from what I can make out, are equally as impressive if not larger. Many are often more ostentatious, with gold painted gates and marble tiled outer walls. The house next door has a pool so large it looks, from my vantage point, like a small lake.
“That house was bought recently by a family from the Mainland,” my host tells me. “They were raised in a village as fish farmers, so when they moved to here she decided to use the pool to farm fish. Returning to their roots, in a way.”
Sharing the opposing side of the road is another four-storey detached house, owned by a judge; and a 7,000 square-foot single storey building topped with distinctive blue tiles, known locally as The Ranch. It was on the market, I was told, but only if one knows the right people.
With respect to my guests, whose company and friendship I value, even if I could afford to live here I would feel uneasy doing so. Their house is certainly one of the larger and more luxurious properties I have been to in Hong Kong, but it is also illegal. This is because it is a village house, as all the properties I have described are supposed to be.
The village I describe is nestled between two of Hong Kong’s most exclusive private members clubs. Its history tells a story that is to a lesser degree reflective of Hong Kong as a whole.
In 1898 the New Territories, being the area north of Boundary Street and south of the Sham Chun River, as well as over 200 outlying islands including Lantau, Lamma and Cheung Chau, were leased to Britain for 99 years. The lease was negotiated between London and Beijing. The indigenous clans for whom it was home were never informed, let alone consulted.
What mattered in the two imperial capitals were the wider strategic interests of Great Power politics. The extension of Kowloon, as it was then called, was ceded to offset a growing French presence in Indo-China. The leasing of Chinese soil in 1898 was in Britain’s imperial interest because it was in China’s interest. Britain had little to gain from the lease itself, but the presence of a more substantial and crucially defendable colony in Southern China acted as a deterrent against young, more ambitious and aggressive imperial powers eager to profit from China’s decline.
Consequentially the arrival of British administration to much of the New Territories in April 1899 came as a surprise to many of the Chinese people who actually lived there, who were at best reluctant to accept British administration as they were the edicts of Beijing. During the Six-Day War of 1899 some 500 local militiamen from many of the New Territories more influential clans would lose their lives.
I am a child of the New Territories. Though born on the island, my father thought the city has no place for a child to be raised, and I was soon moved out to a property on the old Tai Po Road. Every few weeks I would be taken to watch my father ride. The drive North was always spectacular, as the car rounded its way around the lush green hills and then down through the Yuen Long valley towards Fan Ling. What I loved most, and what made this part of Hong Kong so special, were the many jacaranda trees that would each summer bloom in a glorious flush of purple. This magic lined every road and touched each village we passed.
Today, as I pass by these same villages and enter them along the same dirt and concrete roads, not a tree remains. Instead there are yellow signs on which is written, in traditional Chinese only, 閒人免進 (strangers are not welcome). It is both a statement and a warning.
“Are you not worried of all the illegal structures that have been added to your house?” I asked my host. He did not reply. His wife did.
“This is village land. No policeman dares come in here, let alone any official from the Lands Department,” she said. “You saw the signs.”
This is the side to Hong Kong that the city has never been able to shake: that for all the progress that there has been, at its core is a community of tribal power brokers who think themselves above the law.
What mattered to British was trade, and for the colonial government the inexpensive and efficient administration of the city. The application of the rule of law mattered as far as it applied to trade and to an urban and immigrant people who considered themselves, often proudly, as colonial subjects.
In the New Territories the British encountered substantial Chinese settlements, presided over powerful clans. Their roots in the land and its customs had grown over many generations, and their identification as Chinese was very different to those of their countrymen who had come to the colony.
One of my (many) Chinese uncles, a senior member of the Tang family, sums up this relationship:
“My (clan) family were here for hundreds of years before the British came. We fought them when they threatened our land. So they respect us, and learnt to respect our traditions, our customs and our rights to this land. This is our heritage.”
That this uncle is a retired senior civil servant in the colonial administration, and as with many members of his family was afforded a British education, tells the other side of the story: of how these clans were incorporated into the new administrative structure.
“We served the British. My family continues to serve the government, and to represent our land and our interests (in the District councils). But first and foremost we are Tangs. It is the family, and our customs and our ancestral rights, that are important. This is what it means to be Chinese.”
A government and the rule of law was accepted only on conditions, and with exceptions. This too, I would say, is a very Chinese approach. It is this understanding, that places a conceptual and changing ethnic-national identity above the law, that perhaps explains the divergence understanding of the law between the Law Society, whose President is traditionally a clansman, and the more urban and academic Bar Society. It may also help explain why the rule of law never developed in China, and I believe is unlikely to do so.
For the indigenous villagers of the New Territories, these compromises and exceptions meant that the clans had — and in effect made — their own laws in regard to land use, land inheritance, family and the preservation of customs. These are exceptions that continue to this day, again if not on paper than in practice, and with a generation of absentee landlords and property prices at record highs in the case of land use and inheritance rights these “historic” exceptions have become more glaring.
The Small House Policy was introduced in December 1972 and allows every male member of a family descended through the male line to an indigenous villager in 1898 to apply once to build a three-storey village house on either village land, or on public land through a private treaty grant. The house, comprising three 700 square foot flats, one per floor, is meant to provide accommodation for the villager his in-laws not covered by the policy.
It is easy to be critical of the policy and its architect, Sir David Akers-Jones, for being short sighted. However, a policy should be judged not only with the benefit of hindsight, but on the situation and needs of the time, and with account to what was at the time considered government doctrine.
In 1970 Hong Kong had experienced two decades of mass immigration from the Mainland. Between 1949 and 1970 just under two million people fled the new Peoples Republic for Hong Kong, doubling the size of the city’s population, and there was no reason to believe the flow would cease. (Indeed, a further million people would enter Hong Kong between 1970 and 1980.)
The 1967 riots had also forced the government hand. It was no longer possible to secure British interests simply by ensuring Central ran smoothly, whist turning a blind eye to the plight of the migrant Chinese workforce. Along with social and welfare reform and public housing, new urban areas needed to be developed. These new towns, the first being Tsuen Wan and Shatin, would in effect expand the city and government administration into New Territories clan land. It was therefore critical that the support of indigenous villagers be secured.
Sir David was a colonial administrator who understood better than most the dynamics of clan power in the New Territories, and the nature of relationship between the indigenous villagers and the government. It was and had always been colonial policy to incorporate local elites and existing political and power structures within the administrative system through compromise. Power was not imposed but subvented.
The special rights and exemption of the indigenous villagers are, according to their representative body the Heung Yee Kuk, constitutionally protected under Article 40 of the Basic Law, which states:
The lawful traditional rights and interests of the indigenous inhabitants of the ‘New Territories’ shall be protected by the Hong Kong Special Administrative Region.
Whilst Article 40 does not directly apply to the Small House Policy, which is technically not a right but an administrative policy designed to enhance the basic right to build or re-build a house on a villager’s own land, the two do share the same historic origins.
The position of the Kuk, and the arguments advanced to maintain what they see as their historic rights, may be selfish serving and unreasonable in today’s context. Their actions in “defence” of these rights, from barring entry to land, roads and footpaths in public and country park land, to assaulting government officials and puncturing vehicle tires, may be illegal and totally unacceptable acts of thuggery. However, it is also understandable. The Kuk is representative of an often unacknowledged part of our history; that long before One Country, Two System, there was always Two systems, One Colony.
Looking down from the balcony, at the palatial homes around this small cul-de sac, and then across the village towards the trees that mark the edge of the golf course, I see the two systems of Hong Kong. Among the luxury, the Rolls Royces and Mercedes Benz sedans, packs of village dogs scavenge for food as they do in any village in rural China. There is marble and tile, but also dirt roads strewn with litter. For all that has been built, and for all the money that now flows into the village, neither law nor a genuinely modern and democratic spirit has a place here.
The question on the mind of the majority of Hong Kong people is when will these privileges end? When will all Hong Kong people live with the same rights under the same law? At their root these questions ask when will today’s universal human rights outweigh the selective historic rights of the past?
On the golf course we pass villagers teeing off with city lawyers, bankers and developers. Their children play together, speak the same language and attend the same schools. I had once believed one system would prevail, and that Hong Kong would make the transition to being a truly developed society. Today I am less certain.
As the village has grown, it has been our urban civilised values — freedom of thought, a free press and rule of law — that have come under threat. Today it is not only the village thug that defies a just authority, but the government itself. It is the SAR government that now challenges the rule of law; the Bar Association that is criticised; and legislators advocating social justice and land reform that are debarred from taking their seat. Where once our urban values and institutions were ultimately accountable to a liberal democracy, it is now to the whims of the politics of authoritarianism that we must defer. And whilst neither Beijing nor the SAR government may need the support of the Heung Yee Kuk in the way that they once did, neither is there any will within government to challenge what they stand for. Hong Kong, it seems, has come full circle; and that today, as in 1898, we are but a city in an empire.
(Original article is published on Hong Kong Free Press and Stand News)