New Book by Malcolm Merry: The Unruly New Territories (HKU Press)

The Unruly New Territories: Small Houses, Ancestral Estates, Illegal Structures, and Other Customary Land Practices of Rural Hong Kong

Malcolm Merry
Hong Kong University Press
Published in January 2020, 300 pp.

Description: At the end of the nineteenth century a slice of imperial China was abruptly incorporated into the British Crown Colony of Hong Kong. It became known as the New Territories. The people of this remote and traditional corner of the Ching empire were not consulted about the annexation, initially resisted and long resented it. To placate them, the incoming authorities promised that little would alter and that their customs would be respected. The promise would not be fully kept but it became the source of the preservation of Chinese customary law in respect of rural land and the justification for privileges afforded to indigenous inhabitants. Their tenacious assertion of those rights and aversion to authority is detectible throughout the twentieth century and into the era of the Hong Kong Special Administrative Region; it permeates almost every aspect of policy and law relating to rural land.

     The Unruly New Territories is an account of the annexed area and of its special place in Hong Kong history and law. It recounts the customs and privileges, how they preserved a China that was elsewhere disappearing and how they gave—and, despite enormous changes, continue to give—leverage to indigenous representatives in dealings with government as well as handsome profits to rural landowners.

Book Reviews: 

‘This fascinating and impressive book is a must-read for all who want to know more about the New Territories. Malcolm Merry traces, with his usual clarity and insight, its unique land history that blends, not always harmoniously, Chinese custom with the advance of common law and this area’s dramatic development.’ 

—Sarah Nield, University of Southampton

‘The Unruly New Territories covers various aspects of land law and custom in the New Territories and the history of this region in a thoughtful and provocative combined thesis. A must-read for anyone studying the laws and customs affecting land in rural Hong Kong and interested in the history of the New Territories.’

—Steven Gallagher, The Chinese University of Hong Kong

Malcolm Merry on Reforming Hong Kong's Small House Policy

"To reform small house policy, Hong Kong must heed the concerns of its indigenous villagers"

Malcolm Merry

South China Morning Post

3 June 2015

Criticism of Hong Kong's small house policy and suggestions to change it have force but they do not address the arguments of the indigenous community or show understanding of the rural viewpoint.

     To older indigenous people, the turning of the small-house right into money is an exercise of traditional freedoms and a form of participation in the prosperity that Hong Kong has enjoyed during the past 60 years. In that time, the old stability and certainties of their communities have gone. A quiet farming life, centred on village, family, custom and land, has given way to a hectic, more commercial existence.

     Those that held land near the new towns have seen the government take it and sell it to developers who in turn have made handsome profits from building flats there, so that purchasers from town can live in more pleasant conditions. For much of this period, the property market has boomed.

    It is surely no coincidence that the small house policy, which provides subsidised land for the building of houses for indigenous families, was introduced during an era of great expansion of public rental housing and construction of new towns. The policy was seen by rural folk as a reward for their cooperation... Click here to read the full article.

Malcolm Merry on Missing Title Deeds

"Victorian prescience about missing title deeds"
Malcolm Merry
The Conveyancer and Property Lawyer
[2015] 2, pp 176-183

Abstract: A tentative suggestion by a Lord Chancellor of the mid-Victorian era, Lord Campbell, as to the test for whether the absence of original title deeds means that a vendor of property cannot give a good title has been vindicated and elaborated upon by the Court of Final Appeal of Hong Kong (De Monsa Investments Ltd v Whole Win Management Fund Ltd (2013) 16 HKCFAR 419). The test to be applied is whether the deeds which are not produced cast any reasonable suspicion upon the title. Consequently it is possible, depending upon the circumstances, for a vendor to give good title even if the original deeds are missing and an adequate explanation for their absence cannot be given.  Full text article can be downloaded from Westlaw.

New Issue of Hong Kong Law Journal Published (Vol 45, Part 1 of 2015)

ANALYSIS
Public Entertainment and the Interpretive Dilemma in T v Commissioner of Police Po Jen Yap	1
Enforcing Contracts for the Benefit of Third Parties: Recent Reform of the Doctrine of Privity Lee Mason	13
Lecture
Vicarious Liability on the Move Lord Phillips of Worth Matravers	29
ARTICLES
Relevant Lies Janice Brabyn	45
Nullity or Merely Lost Priority? The Effect of Failure to Register a Document Concerning Land Malcolm Merry	87
Taking Transgender Rights Seriously: A Rights-Based Model of Gender Recognition in Hong Kong Kai Yeung Wong	109
Interests of Youth Suspects are at Risk: Implementing the Right to the Presence of Parent or Guardian and the Right to Legal Assistance at the Police Stations in the Case of Youth Suspects in Hong KongShum Ka Ching, Kelly	127
REVIEW ARTICLE
A New Turning Point in the Study of International Legal Compliance, in China and Elsewhere Roda Mushkat	157
Focus: Taiwan’s Sunflower Movement
Introduction Brian Christopher Jones	189
Confrontational Contestation and Democratic Compromise: The Sunflower Movement and its AftermathBrian Christopher Jones and Yen Tu Su	193
Searching for Constitutional Authority in the Sunflower Movement Chia Ming Chen	211
Policing an Occupied Legislature: Symbolic Struggle over the Police Image in Taiwan’s Sunflower Movemen Jeffrey T Martin	229
Connecting Gender and Trade: Gender Framing in the Anti-Cross-Strait Service Trade Agreement Movement Hsiaowei Kuan	249
Dance with the Dragon: Closer Economic Integration with China and Deteriorating Democracy and Rule of Law in Taiwan and Hong Kong? Chien Huei Wu	275
Peaceful but “Illegal” Assemblies? – Comparisons between Taiwan’s Constitution and the International Covenant on Civil and Political Rights Wen Chen Chang	295
Marching Towards Civic Constitutionalism with Sunflowers Jiunn rong Yeh	315
CHINA LAW
Legal Pluralism, Institutionalism and Judicial Recognition of Hong Kong–China Cross-Border Insolvency Judgments Emily Lee	331
Declining Jurisdiction by Forum Non Conveniens in Chinese Courts Zheng Sophia Tang	351
BOOK REVIEWS
Hong Kong Media Law: A Guide for Journalists and Media Professionals: Expanded Second Edition, Doreen Weisenhaus, with contributions by Rick Glofcheski and Yan Mei Ning Danny Gitting	373

New Issue of Hong Kong Law Journal

Hong Kong Law Journal, vol. 44, pt 2 of 2014

Click here for abstracts.

Analysis
Overcoming Obstacles to the Reform of Child Custody Laws: Integrating the Conceptual and the Practical Anne Scully-Hill	371
Family Arrangements, Constructive Trusts and the Home Ownership Scheme Malcolm Merry	391
Lecture
The Level Playing Field: Human Rights and Modern Legal Culture Lawrence M Friedman	403
The Future of the Judiciary: Reflections on Present Challenges to the Administration of Justice in Hong Kong Anselmo Reyes	429
From Rationality to Proportionality in the Modern Law Lord Carnwath CVO	447
Articles
A Typography of Constitutional Arguments in Hong Kong Po Jen Yap	459
Charging Excessively for Data Access Requests in Hong Kong Churk Shue Sing	483
When “Sorry” is the Hardest Word to Say, How Might Apology Legislation Assist? Robyn Carroll	491
Time to Allow Non-Charitable Purpose Trusts in Hong Kong? A case of uncommon choice (of law)? Matteo Ho	519
Unjust Enrichment, Leapfrogging and a Defence of Entitlement Nathan Tamblyn	551
Recognition and Enforcement of Foreign Arbitral Awards in Macau Fernando Dias Simões	563
China Law
Interpretation of Tax Laws in China: Moving Towards the Rule of Law? Dongmei Qiu	589
Derivative Actions in China: Case Analysis Shaowei Lin	621
Popularised Judiciary in Rural China: Paternalistic Approaches and Enchanted Legal Consciousness Feng Yuqing and Cao Qing	651
Book Reviews
Children and International Human Rights Law: The Right of the Child to Be Heard, Aisling Parkes Anne Scully-Hill