Rational development under uncertain de facto jurisdictional boundaries

Land Use Policy 68 (2017) 383–392

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Rational development under uncertain de facto jurisdictional boundaries Lawrence W.C. Lai a b c

a,b

, Mark Hansley Chua

b,⁎

, Ken S.T. Ching

MARK

c

Ronald Coase Centre for Property Rights Research, Hong Kong Department of Real Estate and Construction, Faculty of Architecture, University of Hong Kong, Hong Kong KELand Surveying, Planning and GIS Company Ltd., Hong Kong

A R T I C L E I N F O

A B S T R A C T

Keywords: Property rights Jurisdictional boundaries Sign value Heritage Kowloon Walled City

This interdisciplinary study, drawing on knowledge in institutional economics, history, and cartography, uses evidence based on government files up to 1975 and disclosed since 2003, aerial photographs from 1945 to 1975, and NGO publications evidence to show that developers used metes and bounds, namely the original walls of the main fort as modified by public roads, and the surveyed alignment of a stream, to delimit their building lines under uncertain jurisdictional limits of the boundaries of the Kowloon (Walled) City in spite of certitude of the alignments of its walls. In this light, the paper discusses the proposition that to both the Chinese and colonial governments, “Kowloon City”, consistently referred to as the “Kowloon Walled City” (KWC) in post-war official Hong Kong government files and recent English language academic literature, had a great sign value in terms of Peirce’s theory, as it pointed towards something more than a disused solitary fort. This value cannot be dismissed when articulating present heritage management for the KWC as a public Chinese garden.

Boundary crossings must be expected to occur, even when property is clearly defined, because some persons will seek to obtain differential advantage by crossing borders… (Buchanan, 1993: p.11). 1. Introduction Modern real estate development presupposes clearly delineated property rights. These rights spatially require not only clear delineation of the proprietary boundaries of individual lots (Lai, 2015), but also clear demarcation of spatial limits, within which these lots are bundled as if clearly subject to a specific legal and administrative jurisdiction. When either type of boundaries is uncertain, the economic prediction is that interested parties would rationally seek to reduce ambiguities to constrain rent dissipation due to the transaction costs of conflict. When boundaries are disputed, natural boundaries based on metes and bounds (i.e., physical objects such as paths, graves, trees, or rivers) and a reasonable degree of deviation from the de jure boundaries asserted by one authority are an economically acceptable solution. But where the metes and bounds in question are in the form of an outer defensive wall in an urban setting, then the matter is more complicated than a path for demarcating farm lots. The redevelopment of low-rise, village-type housing into high-rise modern development at Kowloon City, which has become officially and recently also academically1 called in English the ⁎

“Kowloon Walled City” (KWC), with ambiguous jurisdictional borders in colonial Hong Kong is a case in point. This paper shows that developers confronted by uncertainty in jurisdictional boundaries and property rights acted rationally. They did not unreasonably step beyond the natural boundaries of the Kowloon City, chosen by the post-war colonial government as the definitive limit of de facto Chinese jurisdiction, although their building works involved some incursion into territory defined by the colonial government in terms of some walls of the Kowloon City serving as de jure boundaries. 2. Research and institutional background Academic and popular imaging of the Kowloon City as the “Kowloon Walled City” (KWC) (Popham, 1993; Yau, 1994; Girard et al., 1999; Carney, 2013) has been fixated by its ultimate built form destroyed by the colonial government based on an announcement made in 1987, when this form was actually only 15 years old. Its popularlyknown physique was just a fraction of the true Kowloon City, as defined by its walls, and the life history of this “City of Darkness” (Popham, 1993; Girard et al., 1999; Carney, 2013), was only a brief moment in its history, which dated back 140 years before that, when it was built as a fortified Manchu administrative centre against the then-newborn British Crown Colony of Hong Kong. British annexation of Kowloon in

Corresponding author. E-mail addresses: [email protected] (L.W.C. Lai), [email protected] (M.H. Chua), [email protected] (K.S.T. Ching). Endacott (1964), for instance, used the original name, “Kowloon City”. But the official post-war name, “Kowloon City,” refers to the wider administrative district and KWC refers to the part of the old fort that became famous for its post 1963 built form and density. 1

http://dx.doi.org/10.1016/j.landusepol.2017.08.009 Received 22 July 2016; Received in revised form 31 July 2017; Accepted 7 August 2017 Available online 20 August 2017 0264-8377/ © 2017 Published by Elsevier Ltd.

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the number of Chinese residents and buildings in the Kowloon City as a token of its sovereign presence in Hong Kong. This was well-perceived by developers as a licence to build within the Kowloon City free from colonial government regulation. To both the colonial regime and Chinese government, the question, then, was where did the boundaries of the Kowloon City lie?

1860 moved the colony’s border very close to the Kowloon City’s gates, which lied close to Boundary Street the then international border. Then the locality of the Kowloon City, with a commercial Chinese town outside the wall with it axial Kowloon Street that pointed towards Kowloon Bay connecting to a pier (“Lung Chun Pier”, “Lung Chin Jetty” or Kowloon Pier) completed in 1875 and extended to 960 feet long in 1892 nearby to serve it (Sinn, 1987), became part of the New Territories, which were leased to Britain for 99 years in 1898 as an extension, even though successive Chinese governments continued to regard the Kowloon City as “always” under Chinese jurisdiction due to a provision in the Convention of Peking, which was understood to provide for the use of Kowloon Pier by the Chinese government. The Kowloon City, as it was in 1847, consisted of a fortified town (2.7 ha) close to the natural shoreline of the Kowloon Bay with a magistracy court (yamen), barracks, and some civilian houses on low ground that was, more or less, rectangular in shape and enclosed by a thick stone wall; along with an outer and thinner triangular area enclosed by a thin stone wall that went up to the summit − a knoll called Pak Hok Shan (White Crane Hill), which has never been recorded on any official map but formed an integral part of the fortified town. To give an idea of the size of the fort: it could well accommodate a building as big as Buckingham Palace (about 1.3 ha2) or the White House (0.14 ha3). During World War II, the Kowloon City’s walls were quarried by the Japanese occupiers using POWs to yield construction materials for expanding Kai Tak Airport by reclamation of the sea, which buried the Kowloon Pier (Sinn, 1987: p.40; Kowloon City District City Council, 2005: p.38) . Due to political pressure exerted by the Chinese government, which insisted that the Kowloon City was under de jure Chinese jurisdiction, the post-war colonial government had a policy of refraining from taking action against what it declared as squatter structures erected within the “Kowloon Walled City”. However, it was never clear as to where the true boundaries of the Kowloon City or KWC actually ran because there was no cadastral or mapping information on the Kowloon City from the time of the Convention of Peking. This uncertainty was not a matter of politics, but the nature of a walled city as a physical entity and a powerful sign of Chinese authority in the British colony. In terms of sign value, a walled city or town,4 not to mention a fort, has great research and policy attractions in architectural, heritage, and historical studies, as evidenced in the writings of, for instance, Ando (1978), Wall (2011), Kelley and Johnson (2004). In Chinese culture, it stands for the authority of the government (Trewarth, 1952; Shen, 1994). Almost all administrative cities and townships in Dynastic China were walled (Shi, 1992). In the Kowloon City, the presence of the residence and offices of a magistracy testified to the actual function of the fort. This explained the motif of Chinese diplomatic concern over a small, solitary, and virtually un-governed Chinese city on “British soil” throughout the entire history of the fort. That the colonial government did not eradicate the Kowloon City by fully abolishing its name or removing its walls from cadastral or other map records, but rather encircled it with roads and other land use zones that served to delimit the City’s boundaries, and retitled it the “Kowloon Walled City” could be seen as a symbolic interaction that consolidated it as a sign of Chinese sovereignty over Hong Kong in the future. In practical terms, as the post-war Chinese government was not politically powerful or ready enough to re-occupy and govern the Kowloon City (or the rest of Hong Kong), its approach was to deny the colonial government any means to administer the City as far as it was a living quarters for the Chinese and took

3. Certitude of wall alignment and the penumbrality5 of KWC boundaries The alignment of the walls of the Kowloon City was definitely unambiguous, as they were physical structures and professionally surveyed and recorded on a demarcation district (DD) plan. However, the exactitude of the location of these walls, which were civic and defensive structure and conveniently used as “metes and bounds” for boundary determination, is not incompatible with the uncertainty of their boundaries. To assert that the boundaries of the Kowloon City were unambiguously defined by its walls would entail that the Kowloon City could not be treated as a detached structure. For a walled city to be regarded as a free-standing civic, if not also an effective defensive structure of a country, is only reasonable to prevent “foreign” buildings from being constructed right up to its walls and allow for a buffer zone, along which no building should be erected. How broad should this buffer zone be? Should this be the effective beaten range of its artillery? The answer would have been easy if the Kowloon City or KWC had been constructed with a moat or road that would ring its walls as a buffer and tangibly demarcate the “true boundaries” of the Kowloon City. In the absence of this, the width of the non-building zone outside its walls was ambiguous ab initio, unless there were some significant natural features that could be justifiably used as “natural boundaries”. Fig. 1 is a schematic vertical section of a walled town that illustrates the ambiguity of the Kowloon City’s boundaries in the absence of any natural boundaries. Horizontally, the penumbra encircled the Kowloon City like an apron had a definitive Kowloon City end limit along its wall but a fuzzy outer fringe. This penumbra enclosed the eastern, southern, western thick wall as well as the western and eastern thin wall but excludes the town along Kowloon Street or Kowloon Pier. The penumbrality of the boundaries of a fort or castle as a freestanding defence structure can only be resolved by arbitrary delineation, as vividly demonstrated by the boundaries of Mount Davis Fort in Hong Kong with five 9.2-inch gun emplacements and a history dating back to 1912, as shown in Fig. 2. The “boundary and barbed wire fence” of the fort in the land allocation by the colonial government to the War Department did not “naturally” follow any contour of Mount Davis or the alignment of Victoria Road, but a series of straight lines of unequal length. These de jure boundaries enveloped the footprints of the gun emplacements and various associated facilities like battery-plotting rooms (BPR) or position-finding cells (PF Cells). By the same logic, there had to be comparable de jure boundaries that enveloped the Kowloon City, had the same concept been applied to it, and made it a free-standing defence structure like the gun emplacements of Mount Davis Fort. When the colonial government sought to clear “squatters” from the “Kowloon Walled City” to convert it into a public walled garden during the 1930s, it allowed for a belt of an “open space reserve” outside its thick walls to the north of Carpenter Road. This reserve may be regarded as a reasonable and practical measure of assessing the Kowloon City’s “true” boundaries. As revealed by recent research based on released confidential official documents on the Kowloon City (Lai, 2016) and corroborated by further examination of official maps in this paper,

2 http://www.buckinghampalace.co.uk/buckingham-palace-tours.php (accessed 11 July 2016). 3 http://www.whitehousemuseum.org/overview.htm (accessed 11 July 2016). 4 Note that the overseas Chinese actually call their Chinatowns “Tang People’s streets”. A major town in China was often walled. Tang was a famous Chinese dynasty, during which its urban population was less restricted by its walls due to increased trade.

5 See Lai and Davies (2017) for an elaboration on the concept of boundary of penumbrality in land boundaries setting and measurement. In this paper, the penumbra is a prior problem which is about the reasonable width of a building free belt along a defensive wall.

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as discussed below, the alignment of the Kowloon City’s thick wall to the east, south and west plus Tung Tau Tsuen Road (which runs outside but close to the northern wall) was regarded by the colonial government after the war as the official boundaries of the proper of the Kowloon City (i.e., where the magistracy court, barracks, and civilian houses once stood) without allowing for any buffer. The aim was to obviously use three walls and a road as a means to legitimize the minimization of the Kowloon City’s land area as a de facto Chinese domain “within the walls”. This could be demonstrated by transposing the Demarcation District (DD) Plan onto the so-called “Nunnery Scheme,” as shown in Fig. 3; and the alignment of the Kowloon City’s walls as shown in the DD Plan onto the Nunnery Scheme designed during the 1960s, as indicated in Fig. 4, which also shows that in the Nunnery Scheme, as well as the boundaries of the “Kowloon Walled City Park” and the adjoining “Carpenter Road Park” (Government Land Allocation [GLA] numbers

Fig. 1. Planimetrically certain region defined by town walls and penumbrality of the boundary of a wall-defended town.

Fig. 2. Mount Davis Fort, Hong Kong.

Fig. 3. An overlay of the Nunnery Scheme with the 1905 survey sheet for Survey District 1.

GLA-NK-554 and GLA-NK-346, respectively). A GLA is a vehicle by which the colonial government allocated land and management 385

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Fig. 4. An overlay of the walls of the Kowloon (Walled) City extracted from the 1905 survey sheet with the Nunnery Scheme.

As a matter of “secret” strategy, the alignment of the thick wall defined the spatial limits of the government’s application of land, building, and planning law and policy, as embodied in the so-called Nunnery Scheme (Lai, 2016), which sought to encircle the Kowloon City with new roads and public housing. The aforesaid pre-war Carpenter Road (to the south), post-war Junction Road (to the west), and Tung Tau Tsuen Road (to the north) formed a grid with the new Tung Ching Road (to the east), which cordoned off the Kowloon City proper (Area B), by then severed from Area A by Tung Tau Tsuen Road and forgotten. Upon the KWC’s demolition (Areas B and B’) and the clearance of squatters from its vicinity (Area C) in 1993, the “Kowloon Walled City Park” and “Carpenter Road Park” were built, under GLANK-554 and GLA-NK-346, respectively, so that the grid delineated by Junction Road, Tung Tau Tsuen Road, Tung Ching Road, and Carpenter Road, save for a few private lots in its southwestern corner, became one neat and tidy precinct for the Kowloon City that is retained in the neighborhood residents’ collective memories, which, nonetheless, has forgotten Area A up in Pak Hok Shan. That is a name not shown on any official map. Building structures found in aerial photos and/or field surveys could be handily compared to the official boundaries in the Scheme, the progress of which could be reviewed. While the official boundaries were surely “unnatural” for distorting the true shape of the Kowloon City and denying it as a freestanding entity, any aggressive Kowloon City developer would have risked sanction by the colonial government for stepping beyond the limit of an area where Chinese diplomatic protection was available. In this situation, how could a developer reduce uncertainty as to the Kowloon City’s boundaries and determine where the spatial limit lay? To fathom that limit was a most delicate business and professional decision.

responsibilities to its departments for specific functions. Fig. 5 shows the conceptual horizontal layout of the Kowloon City defined by its walls and immediate environment. Area A has an area of approximately 1.7 ha, Area B 2.7 ha, and Area C 0.1 ha. The “City of Darkness” in the popular and even official meaning of the “Kowloon Walled City” referred to Areas B and C taken together (i.e., 2.8 ha in size) with Area A, under public housing, apparently forgotten by the Chinese government. In all figures, the Kowloon City or KWC was delineated by a thick wall (Area B in Fig. 5), but the area that was once enclosed by the thin wall (Area A in Fig. 5) was annexed by the colonial government. The Nunnery Scheme was devised after 1963 when the Chinese government warned the colonial regime not to bother with buildings inside the Kowloon City. By then, the colonial government had already built Tung Tau Tsuen (East Head Village) Road, which branched off Junction Road to the far west of the Kowloon City (running more or less along but outside the old northern thick wall) and annexed Area A without meeting any Chinese government or local opposition. Area A was annexed when the colonial government in 1950 allocated, through a Crown Land Licence, the southern slope of Pak Kok Shan (including A), which was described as a “wild land with skeletons,” to a Protestant NGO, which, in 1960, formed the “Pok Oi Village Residents Fellowship Association, Kowloon” to build cottage housing to accommodate refugees fleeing the civil war (1945–1949) in China.6 In 1950, the nascent Communist Chinese government, which would soon send volunteers to Korea, did not raise any objection. It was likely that the Chinese authorities lacked mapping information on the Kowloon City. A report by a Nationalist officer to the Provincial of the Kwangtung (Guangdong), dated 7 October 1946, reported that his investigation gathered that the KWC had an “outer” city built of “earth” on a hill and an “inner city” built of stone and there was much quarrying activity on the hill. It affirmed that as “many changes happened to the City and all documents were lost, it was uncertain if the outer city was within the perimeter of Kowloon City”.7; In 1970, the colonial government, seeking to implement the Nunnery Scheme, served to occupiers a notice to quit in order to build a rental public housing estate, Mei Tung Tsuen.

4. Discovery of the KWC’s de facto jurisdictional boundaries by developers This study seeks to identify the strategy of the Kowloon City’s developers for converting it from an area with post-war “village type housing” (a term used in government files to describe the type of housing) into a modern high rise settlement with communal electric lifts to deal with the delicate issue of the Kowloon City’s boundaries. This strategy became profitable during Hong Kong’s post-war economic

6

Resettlement Department (1966). Chinese Archival Publisher (2007): p.33. However, the People’s Republic government did note in a 1950 Report that the outer city was part of the Kowloon City. Chinese Archival Publisher (2007): p.176-177. 7

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and large, this zone lied to the west of a stream that drained into Kowloon Bay from the north. The alignment of this stream, delineated on the colonial government’s survey map but was trained after 1949,8 was arguably the “natural” eastern boundaries of the Kowloon City. To gain an informed view of the developer’s strategy, the authors consulted disclosed confidential government files on the Kowloon City from 1930s up to 1976, which were only disclosed in 2003; vertical and oblique aerial photographs taken by the RAF from 1945 to 1960; Public Works Department photos taken from 1963 to 1975; and Chinese publications found in a university library. Table 1 shows the aerial photos consulted and their interpretation. The aerial photos showed that the high-rise buildings in the Kowloon City (Area B) first emerged along the alignment of Tung Tau Tsuen Road (which was the proxy for the lost northern portion of the thick wall); then it ran along the path, “Lung Chun Road” (which was the proxy for the southern portion of the thick wall); then the eastern “sensitive zone” protected by China and that the government sought to delimit by Tung Tsing Road under the Nunnery Scheme; then along a line which approximated the western portion of the thick wall before finally running down the central part outside the communal buildings. How could a developer have known where “the boundary” was crossed? One speculation was that it had access to the Nunnery Scheme’s mapping information. However, assuming that the colonial government did not leak information, a developer could rely on memory of the walls, as transmitted by the “footprints” of existing “village type housing,” which a GIS study showed to have followed preexisting de facto proprietary boundaries (Lai et al., 2016): the metes and bounds. By 1966, as many as 8500 households (35,000 residents) and 20 multi-storey buildings had been erected in the Kowloon City (Table on p.5, Kowloon Walled City Kaifong Welfare Promotion Association, 1966). By 1972, 27,522 residents lived in its 563 buildings, of which 259 buildings exceeded three storeys inside Area A (Annex III, City District Office, 1972). Some 1161 people resided in 39 buildings, of which two were eight and ten storeys high in the eastern “sensitive zone” along Tung Mei Road. Jones (2011, p.275) gave a 1987 figure of 33,000 persons when the fate of Area B of the Kowloon City was sealed after the colonial government announced its decision to demolish all buildings in the “Kowloon Walled City”. Table 2 shows the population of the Kowloon City at various time in history. Tables 3 and 4 reproduce the colonial government’s statistical tables, which were disclosed in 2013. From the evidence gathered, one may infer that: (a) the “official” Kowloon (Walled) City population (those in Areas B and C) did NOT actually explode; and (b) developers regarded Tung Tau Tsuen Road as a natural northern boundary and the footpath of “Lung Chun Road” as the natural southern boundary. Regarding (a), the population density of (Area B of) Kowloon City, notwithstanding the high-rise redevelopments, actually did not grow and, in fact, decreased in light of the unofficial 1965 population figure of 35,000 persons reported by the residents association (Kowloon Walled City Kaifong Welfare Promotion Association, 1966). Even if one accepts the 1972 official figure of 27,522 persons, the increase from 1972 to 1987 was insignificant, as more high-rise units were built to distribute the population vertically. Still, 12,000 persons per hectare in a concrete jungle without a potable water supply was an alarmingly high density figure. Regarding (b), which is the focus of this paper, developers did venture into the “sensitive zone” beyond the eastern thick wall. In response to the colonial government’s efforts to limit the Kowloon City’s boundaries to the wall in Area B, developers minimised risks by not exceeding the western or southern wall of this areas (lowercase L and M

Fig. 5. Schematic drawing of the Kowloon (Walled) City’s fuzzy boundary (not to scale).

boom and China’s 1963 official statement on its sovereign rights over the Kowloon City, which went unchallenged by Britain. The statement defined the Kowloon City’s property rights in two ways. First, building development within the Kowloon City’s boundaries, as recognised by China, was always legitimate and would be free from the building controls under Hong Kong Law. Second, the boundaries, insofar as their eastern limits were concerned, exceeded the perimeters of the thick wall and extended to the limits of a so-called “sensitive zone” identified by the colonial government. In other words, China recognised buildings within a narrow penumbra outside the Kowloon City’s eastern thick wall, as shown in Figs. 1 and 4, which was far thinner than the open space reserve the colonial government once allowed, as being within its jurisdiction. From Fig. 3, we can see that by

8 It could be found on RAF aerial photo of 6088 81A/117 dated 24 April 1949 taken at 8000 feet.

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Table 1 Aerial photos of Kowloon (Walled) City 1945–1975. Year (Photo taking organisation)

Photo No. [Date] (Sortie number) {height taken}

Remarks

1945 (RAF)

4114 (681/5) [10/11/1945] {20,000 feet}

1949 (RAF)

6088 and 6060 (81A/117) [24/4/1949] {8000 feet} 0100 (F22/81/RAF/554) [7/12/1956] {16,700 feet} (“Secret”)

Buildings found in Area B of KWC without any wall Carpenter Road already existing. Stream outside location of the eastern wall of Area B still existed. Stream outside location of the eastern wall of Area B still existed.

1956 (RAF)

1961 (RAF) 1963 (R C Huntings)

1964 (R C Huntings)

86 (17/1 F44/81A/RAF/600) [17/1/1961] (“Restricted”) 5071 [25/1/1963] {2700 feet} 2606 {12,500 feet}

1968/1970 (Public Works Department) 1972 (Public Works Department)

1088 (oblique)

1972 (Public Works Department)

1973 (Public Works Department)

629 (oblique) (showing only north-western corner of the KWC) 1627 (oblique) (looking at the KWC from the east) 3329 [20/2/1973] {3000 feet}

1973 (Public Works Department) 1975 (Public Works Department)

6728 [7/12/1973] {2500 feet} 11468 [2/12/1975] {2000 feet}

1972 (Public Works Department)

Neatly built structures in Area A and in site of future Tung Tau Tsuen public housing area and conditions of Area B like previous years. The stream referred to above could no longer be seen. Northern extension of Junction Road already existing. Conditions of Areas A and B like previous years. Some blocks of Tung Tau Tsuen public housing estate found. Conditions of Areas A and B like previous years. More blocks of Tung Tau Tsuen public housing estate found. Conditions of Areas A and B like previous years. More blocks of Tung Tau Tsuen public housing estate found. Tung Ching Road built. A major cluster of new high rise blocks found in south-eastern corner of KWC.

1776 (looking at the KWC from the east)

New high rise buildings found in most places of KWC. Area A cleared of buildings, Tung Tau Tsuen Road widened. A major cluster of new high rise blocks found in north-western corner of KWC. Area A cleared of buildings, Tung Tau Tsuen Road widened. Same as Photo 1776 of 1972 Same as 1627 of 1972 but construction of Mei Tung Tsuen blocks in progress. Tung Tau Tsuen Road opened to traffic Same as 3329 of 1972 but a completed block Mei Tung Tsuen found. Mei Tung Tsuen completed and the KWC has already assumed its final morphology.

Table 2 Population of the Kowloon (Walled) City. Year

Population

Reference

Notes

1197 (Southern Sung (Song) Dynasty)

Garrison: 300

1668 (Ching (Qing) Dynasty) 1898 (Ching (Qing) Dynasty)

Garrison: 30 Garrison: 544 Civilians: 200 150 More than 500

Kowloon Walled City Kaifong Welfare Promotion Association (1966: p. 5) Girard et al. (1999) Sinn (1987)

A fort built of stones was erected using stones obtained from Pak Hok Shan For defending against pirates

1899 (Ching (Qing) Dynasty) 1930s (China under Nationalist Government) 1947 (China under Government) 1965 (China under Government) 1972 (China under Government) 1987 (China under Government)

Girard et al. (1999) Sinn (1987)

Communist

436 About 2000

Girard et al. (1999) Sinn (1987)

Communist

35,000

Communist

27,522

Kowloon Walled City Kaifong Welfare Promotion Association (1966: p. 15) City District Office (1972: Annex III)

Communist

33,000

Jones (2011: p. 275)

See Table 3 Demolition of all post war buildings in Area B announced by colonial government

zone” (i.e., Area B’), which housed the Kowloon City’s imperial administrative heart.

in Fig. 5), but ventured into the Nunnery Scheme area to the north (until hitting Tung Tau Tsuen Road) and east (Area D). These boundary penumbra developments should have been both classified by the colonial government as “sensitive zones” had it followed its own definition of the Kowloon City’s boundaries. However, the files of the colonial government state that it only considered Area D and another to the west as “sensitive”. In any case, all development was well-contained by public roads, which neatly defined the outermost boundaries of the present public park land, which dramatically and symbolically differentiated into and were separated by a boundary wall between Kowloon Walled City Park and Carpenter Road Park. Fig. 6 shows that the GLA boundaries were well within the penumbrae of the fort (i.e., Area B), although the walls of the public park generally excluded the “sensitive

5. Discussion: the behaviors of developers and the present public park as a response to the sign significance of the Kowloon (walled) city in terms of property rights The findings above testified to the proposition that to the Chinese government, the colonial administration, and even the developer, the Kowloon City had great sign value to the Chinese, as it pointed towards something greater than itself − the site of a disused solitary fort. An attempt is made here to evaluate the effectiveness of the Kowloon City as a sign in terms of Charles Sanders Peirce’s (Peirce et al., 1994; 388

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Table 3 Buildings in the official “Kowloon Walled City”. Source: Annex III, City District Office (1972). Block No. 13 storeys 12 " 11 " 10 " 9" 8" 7" 6" 5" 4" 3 " or below Approx. no. of Approx. no. of Approx. no. of Approx. no. of

1

2

3

4

5 4 1 2 4 1 3 47 67 290 2610 17

1 4 7 8 6 4 7 3 8 4 76 128 655 5895 48

3 1

buildings Storeys Population buildings taller than 4 storeys

3 9 14 13 6 3 2 55 108 574 5166 51

1 2 7 1 3 2 35 52 219 1971 15

5

6

10

Total no. of buildings Total no. of storeys Total no. of population

1 10 90

9

8 1 8 72

7

6

5

4

8

4 8 14 5 7 3 3 2 26 68 456 4104 42

3 and below

Grand Total

37 111 999*

39 129 1161

4 2 7 2 1 3 1 15 35 198 1782 19

13 7 3 4 1

32 64 395 3555 32

7 4 7 2 3

18 41 271 2439 23

Total of buildings

Total of storeys

Total of population

1 11 23 51 41 40 41 19 20 12 304 563

13 132 253 510 369 320 287 114 100 48 912

117 1188 2277 4590 3321 2880 2583 1026 900 432 8208

3058 27522 247

the observer, like the idea of a “fire lit somewhere which causes the smoke” (Chandler, 2002). As Peirce’s sign triangle provides an objectivist sign framework that connects reality to the impression in the perceiver’s mind, it is amenable to empirical analysis. The Peircean sign value is helpful in determining the heritage worth of the Kowloon City site, which, in turn, influences its heritage management as a public Chinese garden, something that should put Padua’s (2007) criticism of the garden in proper perspective. Currently, the sign vehicle that exists is the boundaries of the City, as defined by its thick walls. This is more evident on the maps, especially in the GIS tracing of the original walls (as seen in Fig. 4). As illustrated in Fig. 1, even if all walls, thick and thin, were NOT destroyed, there would be discrepancies over the precise alignment of the Kowloon City’s boundaries vis-à-vis its physical walls. Nevertheless, these discrepancies or gray areas do not deny the existence of a reality that there were boundaries of a walled Chinese settlement. In fact, it has been conjectured that these discrepancies came about because of the penumbra, mentioned above, on which the Kowloon City’s development infringed from the stance of the colonial government, but to which it was still confined. The penumbrae, in fact, may also allude to the identity of the

Table 4 Buildings within the “sensitive zone” of the “Kowloon Walled City”. Source: Annex IV, City District Office (1972). Number of Storeys

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original text c.1903) triangular semiotic framework, which was applied by Metro-Roland (2009) to tourism and Parsaee et al. (2015) to architecture and has great potential to apply to real estate and land use policy. It already provided a solid foundation for an exploratory attempt by Lai et al. (2014). Peirce distinguished three elements of a sign, which form a triangle: the sign vehicle itself (representamen), what it points to (object), and how it is perceived by the receiver (interpretant). Briefly, the representamen, or sign vehicle, is the form of the sign. An example of this could be smoke. The object is to which the sign refers in the real world like fire. However, this need not always be material in nature. Last, the interpretant is the sense made of the sign in the mind of

Fig. 6. Walls and various official boundaries of the Kowloon (Walled) City.

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conclude that the “boundaries” of the Kowloon City, however defined, but always referring to its thick walls, acted as a good sign that the historical fort was Chinese territory. This insight contributes to the heritage value of the site despite the transformations of the Kowloon City’s physique that have occurred since 1847. The behavior of these three important parties above denotes the continuity of this sense. It is beyond the scope of this paper to actually evaluate the heritage value of the Kowloon City. At this stage, only the effectiveness of its boundaries on its sign object is shown. The value of a heritage site is truly difficult to valorize, much less quantify. However, objective comparisons can be made. Further studies using this framework as a thinking tool may be able to compare the value of two different sites using the above three components. This study has a few theoretical practical implications. First, it demonstrates the usefulness of aerial photography and survey maps as means to be used jointly to help identify, respectively: (a) “metes and bounds,” which still exist at the time the photos were taken or immortalized on maps; and (b) objects that might have disappeared, but, nevertheless, had sign value and, hence, could have been embodied in new structures from which inference for the lost artifacts could be drawn. The alignment of the present walls of the public park is a good proxy for the lost walls of the Kowloon City’s main fort. These two factors are important for heritage conservation design planning and assessment. Although many have criticised the “Kowloon Walled City” public park for being poor in historical authenticity (Harter, 2000; Padua, 2007), none has paid attention to the sensibility of the GLA boundary and the garden walls as a means of bearing witness to the lost fort as a sign subject to the caveat that the omission of Area A is regrettable − a remark that sheds light on the art of built heritage research in Hong Kong. Fig. 7 is a conceptual section plan that illustrates the landscape authenticity of the park. The park was built by the colonial government and betrays its admission that the Kowloon City was a special entity with specific boundaries. To a certain extent, the original boundaries of Kowloon City were indicated as the modern park walls that were largely outside the original fort walls and were, hence, the more reasonable boundaries. Second, contested zones may be forgotten by one party that does not have photo and mapping information after the removal of metes and bounds. The destruction of the thin walls in Area A is a case in point. As an outer defence area, its sign value was lower. Third, metes and bounds as signs can actually help delimit the extent of boundary penumbrality rather than cause disputes, as Ward and Carew (2001) or Libecap and Lueck (2008) found, because they reduced, rather than increased, the transaction costs of negotiations. Fourth, public roads constructed post-war to ring a disputed zone with Carpenter Road built pre-war in the south (in this case Junction Road in the west (after 1949), Tung Tau Tsuen Road in the north (sometime between 1949 and 1956) and Tung Ching Road in the east (between 1964 and 1968) were built in clockwise order) outside its penumbra have served to consolidate the zone’s identity. As new peripheral metes and bounds, they are formal and conspicuous physical divides that, at the same time, have set apart and pointed to the contested core. Tung Tau Tsuen Road runs so close to the northern wall that developers deemed it the northern limit of redevelopment. Fifth, as an example of real estate development in the absence of government regulation, this case study shows that developers did respect pre-exiting proprietary boundaries, which conformed, more or less, to a grid iron layout with paths serving as major divides of property parcels. The choice of this pattern of “spontaneous development” testifies against the proposition that the grid iron subdivision of land in a master layout planning by the state is necessarily “dictatorial” in that it stresses order. Rather it should be considered natural and democratic. Sixth, as an example of real estate development under jurisdictional uncertainty, rational risk testing and aversion behavior was observed in the way the Kowloon City’s developers proceeded with redevelopment,

Kowloon City as a defensive structure of old. There is a semiotic continuity of the site from its original function as a Chinese fort with a magistracy court, then as a “City of Darkness,” and now the current walled garden. It is also interesting to note that the boundaries, however fuzzy, have survived their physical delineators (i.e., the walls of the original Kowloon City). Note that the term, “Walled,” in the very title of the “Kowloon Walled City” reinforced the sign value of the walls. Older records, including the Convention of Peking and for instance CO129/544 of 1933 kept confidential till 1984, simply described the place as “Kowloon City”. The postwar re-naming and popularizing of it as “Kowloon Walled City” as can be found in City District Officer (1972, 1975a,b, 1976), Defence Branch (1972), Colonial Secretary (1976) could, thus, carry a symbolic meaning that the colonial government sought to perpetuate. To call a Chinese city of significance a walled city is redundant, as Chinese cities, as their written Chinese character implies, were always walled (Shen, 1994). The historical object that the Kowloon City boundaries pointed to was the fort city, which has always been under de jure Chinese jurisdiction. This unique configuration was what made the Kowloon City stand out as an issue during its complicated international and local history. It can be argued that the iconic “City of Darkness” is the historical object this sign points to, but, nevertheless, the boundaries of this dark city, which were actually brightly illuminated by electric lights at night in spite of some slight geographic tectonics, were based on and due to the very existence of the walled fort. It is in the last element where this paper may make a more significant contribution. What was the sense the sign vehicle under study imprinted in the minds of stakeholders? For the interpretant, the authors looked at the behaviors and statements of three relevant parties: the colonial government, the then-Chinese government, and the Kowloon City developers. Arguably there could be a lot more stakeholders − say, the residents and unit buyers,9 but for the purposes of this study, the authors limited their discussion to these three parties. In the 196210 colonial government communications, there was a big push to convert the Kowloon City (stripped of its walls) into a public housing estate instead of implementing the pre-war plan of making it a public park. The original park plan was intended to avoid the appearance of allowing the colonial government’s limited, if not non-existent, de jure use rights in the former Manchu fort. It was also the land use option that would involve the least jurisdiction issues.11 The Chinese government asserted its sovereignty over the Kowloon City in 1963 during an attempt by the colonial government to resettle its residents. Even earlier, before the Communists took over China, there was a violent riot in 1948 over colonial government’s attempt to clear its squatters (Miners, 1982). Thus, the final equilibrium for the Kowloon City site was a Chinese park for a “Kowloon Walled City”, which is what now stands there. The developers’ strategy of building higher-storey edifices slightly beyond the original limits of the eastern thick wall, but not extending the development further, seemed to indicate that they appreciated the Kowloon City’s fuzzy boundaries. The construction of the 12-storey “Tung Nam Building” during the early 1970s beyond the eastern wall of the Kowloon City (as part of the “sensitive zone”) was probably a test case to see how the authorities would react.12 When no action was taken, similar new buildings started sprouting in the area. One can deduce that the developers rationally expected that the colonial government also expected this outcome, so both parties worked under a Nash equilibrium (Nash, 1953). With the consistency of these three elements, the authors could 9 The behavior of the developers can somehow shed light on the real estate economic behavior of these stakeholders. 10 Paragraph 3, Minutes 3, Secretary for Chinese Affairs (1962). 11 Paragraph 2, Minutes 3, Secretary for Chinese Affairs (1962). 12 City District Officer (Kowloon City) (1972).

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minimising conflicts when jurisdiction is under dispute. The behavior of the developers was found to conform to the standard economic theory of risk aversion. Risk aversion is the alternative to risk taking. Comparatively speaking, areas outside the old walls were more risky for building taller, which involved greater investment, as they are subject to regular government squatter control and surveys. That they built high rise blocks only on land not subject to government squatter control in the presence of the Kaifong Welfare Promotion Association, i.e., land bound by the old thick walls, revealed that they were risk-averse. Some lessons were drawn from the case study, which demonstrated the significance of the Kowloon City’s walls as a sign. The lease map for the New Territories shows that the de jure northern sea boundary for colony Hong Kong ran up to the shoreline of Deep Bay and Mirs Bay, which meant that any Chinese vessel or civilians found in these water bodies would come under British Hong Kong jurisdiction, although Chinese warships had navigational rights in these bays. The idea of delimiting the de facto boundary of Kowloon City right along its wall was akin to a highly “advancing” tactical choice. The marine boundaries could have retreated had China reclaimed land from the sea, but since Kowloon City’s walls were fixtures, no such loss of territory was possible if such walls were accepted as “the true boundaries” for a domain in which the absentee owner (China) would underwrite developers’ projects within its bounds when they were challenged by the tenant (Britain). The scope for further better theoretical and empirical research on the Kowloon City by scholars of diverse backgrounds is huge. Four main directions of research are worth pursuing. The first, as a sequel to this mapping and photo study, would be the precise planning history of the City based on colonial and Chinese government sources, if any (Lai and Chua, 2017). The second is the sociological background of the builders of the high rise buildings in the City. Public Records Office sources would be of great value in this regard. The third is the actual housing standards of typical flats in terms of space, layout and density compared with private and public rental units of the same period of time. The fourth area of inquiry is the demographical and socio-economic status of the City compared with the rest of urban Kowloon in light of published census statistics for the years 1971, 1976, 1981 and 1986. Hitherto, these statistics have not been used by those who write on the City.

Fig. 7. Partially vindicated boundaries of Kowloon (Walled) City.

which was carried out “at the margins” incrementally. That the first locations for redevelopment were along the alignments of the walls was an example of profit-maximization, as units along these axes would enjoy more natural lighting and suffer from the fewest view obstructions. This was predictable even had the site not been complicated by any jurisdictional problem. The sequence and manner of redevelopment, however, was obviously a way to test the colonial government’s reaction. The overall conclusion was that the logic of the market prevented the emergence of anarchy. An unsolved mystery is why there had been no attempt by a single firm (i.e., a monopoly)13 to assemble all of the land and redevelop the site according to a private master layout plans. The reason was that this would probably lower the cost of the colonial government’s intervention. Absence of barrier to entry to the land market and ad-hoc and densified redevelopment more or less “within the walls” as a sign—even at a cost of less than desirable environmental outcome14—were therefore a strategy (intentional or by default) to protect private property under uncertainty versus sanction threatened by the colonial government. Seventh, as an example of post-colonial conservation of pre-colonial heritage, this case study shows that the Kowloon City’s very official name “Kowloon Walled City” has great significance by directing attention to its walls (then lost) as boundaries, something fuzzy for a free standing walled town.

References Ando, T., 1978. The Wall as Territorial Delineation. The Japan Architect (7806, June, pp. 12–13). Buchanan, J.M., 1993. Property as a Guarantor of Liberty. Edward Elgar, Aldershot. Carney, J., 2013. Kowloon Walled City: Life in the City of Darkness. South China Morning Post (September 4, 2013). Chandler, D., 2002. Semiotics: the Basics, London. Routledge, New York. Chinese Archival Publisher, 2007. Hong Kong Kowloon Walled City: Selected Archival Materials (Xiang Gang Jiu Long Cheng Zhai Dang An Shi Liao Xuan Bian). Chinese Archival Publisher, Beijing (Chinese publication) ISBN 978-7-80166-897-4. City District Officer (Kowloon City), 1972. A short study on multi storey buildings in and around the walled city, confidential report dated 7.11.1972 in colonial secretary (1976). Kowloon walled city. Implementation of Ad Hoc Committee Reports Confidential File CR5/3371/60 Part VII. Part II. (HKRS 163-9-233 Part II). City District Officer (Kowloon City), 1975a. Hong Kong airport (Control of obstructions) ordinance. Development of No. 24 Tung Tau Tsuen Road, Kowloon City. (Confidential memo to Secretary for Security dated 27 May 1975. [HKRS 396]). City District Officer (Kowloon City), 1975b. Kowloon walled city. Occupied Buildings Exceeding Height Limits. (confidential paper dated 16 October 1975. [HKRS 396]). Colonial Secretary, 1976. Kowloon walled city. Implementation of Ad Hoc Committee Reports, Confidential File CR5/3371/60 Part VII. Part I. (HKRS 163-9-233 Part I). Defence Branch, Colonial Secretariat, 1972. Paper for the governor committee. MultiStorey Buildings on the Periphery of the Kowloon Walled City, Confidential Paper in Confidential File CR5/3371/60 Part VII. (HKRS 163-9-233 Part I). Endacott, G.B., 1964. Government and People in Hong Kong 1841–1962: a Constitutional History. Hong Kong University Press, Hong Kong. Ewise, V., 2014. I need some elbow room. Tiger 108 (9) (4 April 2014, pp.). Girard, G., Lambot, I., Goddard, C., 1999. City of Darkness: Life in Kowloon Walled City, Chiddingford. Watermark, Surrey. Harter, S., 2000. Hong Kong’s dirty little secret clearing the walled city of Kowloon. J. Urban Hist. 27 (1), 92–113. Jones, G., 2011. The kowloon city district and the clearance of the kowloon walled city:

6. Conclusion The final population of the official “Kowloon City” was as large as the size of the Japanese army that attacked Hong Kong in December 1941, which might have reminded the colonial regime of the Communist tactic of a “human wave” attack (Soixante, 1961). In any event, a once militarized and walled Chinese city with a long history was definitely a symbol of a de jure long term landlord in colonial Hong Kong. The invisible hand of the development business was surely shaped by this political reality. Physical objects represented on maps as lines also played a symbolic role. This paper traces and map the alignments of the original walls of the Kowloon City, the roads that were built to enclose the site, the boundary of the Nunnery Scheme, and the present GLA and walls of the Kowloon Walled City Park. It concludes by arguing that metes and bounds are useful referents for delimiting boundary uncertainty and 13 The colonial government identified about ten major developers with no obvious signs of collusion. 14 This lured architect Ewise (2014) to jump to the wrong conclusion of the need to a “mass depletion of human population”.

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12 (179-156). Nash, J., 1953. Two-person cooperative games. Econometrica 21 (1), 128–140. Padua, M.G., 2007. Designing an identity: the synthesis of a post-traditional landscape vocabulary in Hong Kong. Landscape Res. 32 (2), 225–240. Parsaee, P., Parva, M., Karimi, B., 2015. Space and place concepts analysis based on semiology approach in residential architecture: the case study of traditional city of bushehr, Iran. HBRC J. 11, 368–383. Peirce, C.S., Hartshorne, C., Weiss, P., Burks, A.W., 1994. Chapter 8: elements of logic. The Collected Papers of Charles Sanders Peirce. Electronic Edition Vol. 2 InteLex Corporation. Popham, P., 1993. The city of darkness. Archit. Rev. 193 (1161), 71–75. Resettlement Department, 1966. Pok Oi Village Residents Fellowship Association, File RD 7/131/64. (HKRS 524-3/8). Secretary for Chinese Affairs, 1962. Confidential File CR6/5282/63. (HKRS 163-1/2977). Shen, Y., 1994. The Ordering of the Chinese City, Doctor of Design Thesis. Harvard University. Shi, M., 1992. The development of municipal institutions and public works in early twentieth-century Beijing. Chin. Hist. 5 (2), 7–24. Sinn, E., 1987. Kowloon walled city: its origin and early history. J. Hong Kong Branch R. Asiat. Soc. 27, 30–45. Soixante, 1961. Defeat in the east. R. United Serv. Inst. J. 196 (623), 355–371. Trewarth, G.T., 1952. Chinese cities: origins and functions. Ann. Assoc. Am. Geogr. 42 (1), 69–93. Wall, K., 2011. ‘A sliver of the true fort’: imagining fort edmonton, 1911–2011. J. Heritage Tour. 6 (2), 109–128. Ward, P.M., Carew, J., 2001. “Tracking land ownership in self-help homestead subdivisions in the United States: the case of texas “Colonias”. Land Use Policy 18 (2), 165–178. Yau, E., 1994. New Chinese Cinemas: Forms, Identities, Politics. Cambridge University Press, Cambridge, pp. 180–220.

personal recollections. J. R. Asiat. Soc. Hong Kong Branch 257–278. Kelley, D., Johnson, W., 2004. Geophysical survey as a management tool for historic properties: two examples from the minnesota territorial frontier −Fort ripley and fort abercrombie. In: Paper Presented to the Society for Historical Archaeology, 37th Annual Conference. St. Louis, MO, January 7–11, 2004. Kowloon City District City Council, 2005. A History of Kowloon City. Man Li Publishers, Hong Kong Chinese publication. Kowloon Walled City Kaifong Welfare Promotion Association, 1966. Third Anniversary of the Establishment of the Kowloon Walled City Kaifong Welfare Promotion Association, Hong Kong. (Chinese document). Lai, L.W.C., Chua, M.H., 2017. The History of Planning for Kowloon City. Planning Perspectives. http://dx.doi.org/10.1080/02665433.2017.1331751. Lai, L.W.C., Davies, S.N.G., 2017. A coasian boundary inquiry on zoning and property rights: lot and zone boundaries and transaction costs. Prog. Plann. http://dx.doi.org/ 10.1016/j. Lai, L.W.C., Chau, K.W., Lee, C.K.K., Lorne, F.T., 2014. The informational dimension of real estate development: a case of a ‘positive non-interventionist’ application of the coase theorem. Land Use Policy 41, 225–232. Lai, L.W.C., Lorne, F.T., Chau, K.W., Ching, K.S.T., 2016. Informal land registration under unclear property rights: witnessing contracts, redevelopment, and conferring property rights. Land Use Policy 50, 229–238. Lai, L.W.C., 2015. ‘Where to draw the line?’ that is a land use planning question for the land surveyor and the town planner. Land Use Policy 42, 619–627. Lai, L.W.C., 2016. Un-forgetting walls by lines on maps: a case study on property rights, cadastral mapping, and the landscape of the kowloon walled city. Land Use Policy 57, 94–102. Libecap, G., Lueck, D., 2008. The demarcation of land: patterns and economic effects. J. Polit. Econ. 119 (June (3)), 426–467. Metro-Roland, M., 2009. Interpreting meaning: an application of Peircean semiotics to tourism. Tour. Geogr. 11 (2), 270–279. Miners, N., 1982. A tale of two walled cities: kowloon and weihaiwei. Hong Kong Law J.

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