For a city to thrive and prosper, few issues are as important as housing. Hong Kong has been haunted by a housing crisis for years, with a growing queue for public housing. Hundreds of thousands of people are living in tiny subdivided units, and property prices are soaring to a level that is unaffordable except to a small percentage of the population. The only solution to the crisis is to increase land supply.
Lantau Tomorrow Vision is a laudable idea. Yet it will take years before we see the first group of people moving in. Hong Kong needs immediate solutions.
Meanwhile, large pieces of land in the New Territories are sitting idle and grossly underutilised, including tso/tong land, held in the name of a clan, family or tong.
According to a book published by the Heung Yee Kuk, there is around 2,400 hectares of such tso/tong land scattered across the New Territories, and much of it sits in the middle of large sites that could be developed. If developed together with adjacent land, this would be a great boost to housing supply in the short to medium term.
Many clan members are eager to sell their tso/tong land, but the intended sale often fails to materialise. Under the New Territories Ordinance, each tso or tong is required to appoint a “manager”, and the manager must obtain the consent of the relevant district officer for a sale to go ahead.
For many years, district officers would only approve a sale when there was unanimous consent from all clan members. Even where there was a single objection, they would choose not to process the application. Their inaction is as much a result of an incorrect interpretation of the law as the bureaucratic mindset of officials.
A close examination of the New Territories Ordinance shows there is no provision requiring unanimous consent of every clan member. Neither is there any binding judicial precedent which says it is a must under Chinese custom.
The statutory purpose of the relevant provisions in the New Territories Ordinance is to facilitate land transactions. And the ordinance gives district officers discretion to consider all relevant factors when processing such sale applications. To do nothing whenever an objection is received would be to frustrate the legislative intent.
This is especially so when the objection is not based on valid grounds. As government representatives, district officers have a responsibility to make inquiries about the applicable Chinese customs, and look into and understand the reasons for the objections and mediate disputes over land transactions. It is only right for them to consider whether the objection of one member, or a minority of members, is sufficiently cogent to justify undermining the broader purpose of facilitating land transactions.
For tso/tong land facing compulsory resumption by the government under the Lands Resumption Ordinance, an objection to the land being sold to a private buyer would, more often than not, be against the interest of the majority of clan members, because the sale price would usually be substantially higher than the statutory and ex gratia compensation payable under resumption.
Can the Lands Resumption Ordinance offer a way out of housing crisis?
As public servants, district officers have both a responsibility and the power to act so as to protect the interests of the majority of clan members. They have a Tameside duty (a public law duty to inquire) to ascertain what the relevant Chinese custom is, which could vary from clan to clan.
In the past, there were cases when only consent from the eldest son’s family was needed to decide tso/tong matters. With the membership of some clans running into thousands, getting the consent of the eldest son’s family is a much more sensible approach. It surely deserves serious consideration and due recognition.
Hong Kong remains the world’s least affordable housing market, for the 11th year now, and the average waiting time for public housing has climbed to another record high of 5.7 years. For the long-term stability of Hong Kong, we must explore all means and do our utmost to increase housing supply.
A proper understanding of the law and Chinese customs, and a change in mindset among officials, are all that is needed to unlock the development potential of thousands of hectares of land.
Ma Ho-fai is a Hong Kong deputy to the National People’s Congress and a senior property lawyer
