CHAN CHI SHING v. THE REVISING OFFICER MR. SYMON WONG AND OTHERS

HCAL 132/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 132 OF 2010

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J U D G M E N T

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A. Introduction

1.  This is the combined hearing of the Applicant’s application for judicial review (under HCAL 132/2010) and the Petitioner’s election petition (under HCAL 9/2011).   They are related to the election held on 23 January 2011 (“the 2011 Election”) for electing two indigenous inhabitant representatives of Luk Keng Village Chan Uk, New Territories (“Chan Uk”) under the Village Representative Election Ordinance (Cap 576) (“VREO”).  The 2011 Election was conducted and supervised by the Electoral Affairs Commission (“EAC”) pursuant to s. 9A of the Electoral Affairs Commission Ordinance (Cap 541) (“EACO”).

2.  As the Applicant (under the judicial review application) and the Petitioner (under the election petition) is the same person, for convenience I would refer to him in this Judgment as the Applicant even when I am dealing with the election petition.

3.  The Applicant is an indigenous inhabitant (as defined under the VREO) of Chan Uk.    He was one of the four candidates standing for the 2011 Election.   The other three candidates were, Mr Chan Kwun Wah (“KW Chan”) “陳觀華”, Mr Chan Sui Yan (陳瑞仁) and Mr Chan Wai Hong (陳衛康). 

4.  At the same time, under the VREO, in order to be eligible to be registered as an elector in an election, one has to be, amongst others, an indigenous inhabitant of the subject village. 

5.  The Applicant disputed the Electoral Registration Officer’s decision to include 116 people (i.e., the 3^rd to 118^th Interested Parties named under the judicial review application) (“the 116 People”) in the provisional register of electors for the year of 2010 for the 2011 Election.   The Applicant says the 116 People are not eligible to be registered as electors as they are not indigenous inhabitant of Chan Uk as defined under the VREO.

6.  The Applicant then appealed against the Electoral Registration Officer’s said decision to the Revising Officer under VRE Appeal Nos. 172-189, 191-272, 274-285, 287, and 289-291 of 2010 (collectively “the VRE Appeals”).   After hearing the VRE Appeals, by way of his decision (“the Decision”) made on 17 September 2010, the Revising Officer dismissed the VRE Appeals.

7.  In this judicial review^[1], the Applicant seeks to review the Decision and quash it.

8.  Under the judicial review, the Revising Officer is named as the Respondent, while the EAC, the Director of Home Affairs (“the Director”) are respectively joined as the 1^st and 2^nd Interested Parties and the 116 People as the 3^rd to 118^th Interested Parties.

9.  The 2011 Election was eventually held on 23 January 2011 as scheduled.  KW Chan and Chan Shui Yan were elected with respectively 176 votes and 171 votes.  The Applicant and Chan Wai Hong were not elected respectively with 69 votes and 61 votes.   Notice of the result was gazetted on 28 January 2011.

10.  The Applicant filed the election petition on 23 January 2011 seeking a declaration that KW Chan was not duly elected under the 2011 Election.  The election petition is premised on two principal grounds. First, KW Chan is not an indigenous inhabitant of Chan UK and thus could not validly be registered as a candidate and stand for the election.  Second, the 116 People are not indigenous inhabitants of Chan Uk, and thus could not be validly registered as electors for the election, and their voting in the 2011 Election constituted a material irregularity of the election, its polling and/or the counting of the votes.   

11.  The reasons and evidence relied on in the election petition to challenge that KW Chan and the 116 People are not indigenous inhabitants of Chan Uk are similar to that of the judicial review. 

12.  As a result, on the Applicant’ application, I directed on 23 February 2011 that the application for judicial review and the election petition be heard substantively together.

13.  Before I set out the further background to these applications, it is perhaps necessary for me at this stage to clarify a confusion made in relation to whether KW Chan is also named as an interested party (amongst the 116 People) in the judicial review application.   There is no doubt that he has been properly joined and named as the Respondent in the election petition.

14.  Originally, under the provisional register, two registered electors bear the same name as “陳觀華” (Chan Koon Wah), but they have different addresses and HKID numbers.  When the Applicant lodged the VRE Appeals, he named one of these two Chan Koon Wah as one of the respondents therein.  In this judicial review, a Chan Koon Wah was also named as the 3^rd Interested Parties (as amongst the 116 People).  This named Chan Koon Wah in the judicial review must be intended to be the same one named as a respondent in the VRE Appeals, as the judicial review is to challenge the Decision made under the VRE Appeals.  The initial hearings^[2] of the judicial review and the election petition were proceeded on the impression that this named Chan Koon Wah in the judicial review is the same as KW Chan. 

15.  However, by the time when it came to the second hearing on 1 April 2011 of the judicial review and the election petition, it was clarified by KW Chan that he was not the one Chan Koon Wah named under the VRE Appeals and the judicial review.    Thus, KW Chan is not in fact joined and named a respondent under the VRE Appeals as well as one of the Interested Parties under the judicial review.   The judicial review therefore does not relate to or concern KW Chan^[3].

16.  However, as I mentioned above, there is no doubt that KW Chan is the respondent under the election petition.   Therefore, there is nothing to prevent the Applicant from challenging KW Chan’s candidacy under the election petition on the basis (similar to the grounds set out in the judicial review) that he is not an indigenous inhabitant of Chan Uk and that there was a material irregularity of the 2011 Election related to the 116 People’s eligibility as electors.

17.  With this clarified, I will now proceed to set out the relevant background facts leading to the judicial review and the election petition.

B.  The facts

18.  In summary and for the present purposes, under the VREO:

(1)  There should be an election for indigenous village representatives for a recognised indigenous village once every 4 years. The office of the indigenous village representative is for a period of 4 years commencing 1 April on the year of election^[4].

(2)  A registered elector of an indigenous village must be an indigenous inhabitant^[5]. As defined under the VREO^[6], an indigenous inhabitant is either:

(a)  A person who was in 1898 a resident of the village; or

(b)  A person who is descended through the male line from a person mentioned in (a) above.

(3)  An eligible candidate for the election of indigenous village representatives must, inter alia, also be an indigenous inhabitant of that village and registered, and eligible to be registered, as an elector^[7].

(4)  The Electoral Registration Officer^[8] shall compile and publish:

(a)  A provisional registers of electors for a village not latter than 27 August in each year; and

(b)  A final register of electors for a village not later than 20 October in each year^[9].

(5)  A person who is dissatisfied with a decision of the Electoral Registration Officer made for the purposes of the VREO may appeal against that decision to a Revising Officer^[10].

19.  It is common ground that for the purposes of VREO, Chan Uk is an indigenous village and the Applicant is an indigenous inhabitant. 

20.  The office of the two indigenous village representatives for Chan Uk elected in the last village representative election held in 2007 was to expire on 31 March 2011.

21.  Thus, for the purpose of electing two new indigenous village representatives for Chan Uk, the 2011 Election was arranged to be held on 23 January 2011. As prescribed by VREO, the Electoral Registration Officer had to compile and publish the provisional register of electors of Chan Uk by 27 August 2010, and the final register by 20 October 2010.

22.  Regarding the registration of electors for the 2011 Election:

(1)  Despite the Applicant’s objection, the Electoral Registration Officer decided to include the 116 People as registered electors in the provisional register of electors.

(2)  The Applicant then appealed to the Revising Officer under the VRE Appeals, contesting that the 116 People should not be included in the list of electors as they were not the descendants of any indigenous inhabitants of Chan Uk. 

(3)  As mentioned above, by the Decision, the Revising Officer dismissed the appeal after holding a hearing on 17 September 2010.

(4)  After the Decision, the provisional list of electors was finalized and became the final register of electors, which was subsequently gazetted.

23.  In relation to the dispute as to the qualification of the 116 People as indigenous inhabitants of Chan Uk and the hearing of the VRE Appeals before the Revising Officer, the unchallenged evidence filed in these proceedings by the Applicant shows the following.

24.  Sometime in 2009, the Applicant heard rumours that many people from the outlying islands in the New Territories had tried to register as electors for the 2011 Election.

25.  In late November 2009, the Applicant and other indigenous inhabitants of Chan Uk were invited to a tea gathering where they met Chan Cheung Yau (aka Chan Cheung) and Chan So (they are two of the 116 People) who wanted to be recognised as indigenous inhabitants of Chan Uk. However, they were unable to provide any documentary proof to show that they were so. 

26.  These people at the tea gathering who wanted to be recognised as indigenous inhabitants of Chan Uk openly claimed that if they succeeded in being so recognised, they would vote for the person who had helped them in their cause.

27.  In late March or early April 2010, the Applicant learnt that the number of registered electors for the 2009 final register for Chan Uk was 396, which was significantly more than the 164^[11] electors registered for the 2007 election.  The number of registered electors was further increased to 481 in the 2010 provisional register published on 27 August 2010. 

28.  With the aid of a genealogy (known as the Ha Wai Genealogy), the Applicant identified 120 of the registered electors in the 2010 provisional register whom he believed were not indigenous inhabitants of Chan Uk.  He then filed 120 notices of objection to these 120 registered electors as respondents on 9 September 2010, which was the deadline for doing so.  These were the VRE Appeals.

29.  On 15 September 2010, the Applicant was given notice that the hearing of the VRE Appeals before the Revising Officer would be held on 17 September 2010.  Effectively the Applicant was given less than 2 days’ notice of the hearing.  At that time, the Applicant and his legal representatives had no clear knowledge of what the respondents’ case would be or what evidence would they rely on to claim  that they were indigenous inhabitants of Chan Uk. 

30.  On the day of the hearing, before it started, the Applicant, his counsel and solicitors were given with (a) documents supplied to them by the staff of the Hone Affairs Department North District Office (“HAD North”) and (b) the documents which the respondents in the VRE Appeals wished to rely on.  The respondents’ documents included a lengthy and voluminous genealogy (the “Respondents’ Genealogy”) and a computer printout genealogy (“the Computer Genealogy”).   The respondents were also legally represented and had instructed counsel to appear for the VRE Appeals.

31.  The Applicant and his legal representatives sought to go through these voluminous documents just before the start of the hearing and during the short morning adjournment.     Before the short morning break of the hearing, the Revising Officer indicated that he wanted the hearing to continue as soon as possible.

32.  The Applicant’s legal representatives therefore only had time to skim through the documents presented by the respondents but did not have to time to go through them in detail before the hearing resumed. Further, the copy of the Respondents’ Genealogy was returned to the respondents’ legal representatives shortly before the resumption of the hearing, and the Applicant and his legal representatives were not given a copy of it for use at the hearing.

33.  Apparently, the Applicant and his legal representatives were only informed of the respondents’ claim that they were descended from the line of Yip Wai Gong (叶忠公) just before the hearing.  

34.  At the hearing, the Applicant and his 2 witnesses were not asked questions by the respondent’s counsel regarding the accuracy of the Ha Wai Genealogy (adduced by the Applicant) and the Respondents’ Genealogy and the entries in these genealogies.   In the circumstances, the accuracy of these two genealogies was not challenged.

35.  Although he was not a respondent in the VRE Appeals^[12], KW Chan was the only witness who gave evidence on behalf of all the respondents at the hearing. He said that the respondents were descended from the lines of two indigenous inhabitants, namely, Yip Chung Gong (叶忠公) and Yip Wai Gong (叶惠公).  KW Chan also relied on the Computer Genealogy to support his said claim. 

36.  However, none of the witnesses at the hearing were taken to the Ha Wai Genealogy and the Respondents’ Genealogy regarding the entries of the descending line after Yip Chung Gong and Yip Wai Gong. Similarly, the Revising Officer was not shown to the parts and entries of these two genealogies relating to the descending lines after Yip Chung Gong and Yip Wai Gong.

37.  The Revising Officer delivered the Decision ex tempore at the end of the hearing of the VRE Appeals.  In the Decision in dismissing the appeals, the learned Revising Officer ruled that, based on the evidence before him, the respondents were indigenous inhabitants of Luk Keng Village of Chan Uk^[13].

38.  After the VRE Appeals, in October and November 2010, the Applicant and some other indigenous inhabitants of Chan Uk collected the following further evidence which they say show that those respondents could not have descended from Yip Chung Gong and Yip Wai Gong as they claimed:

(1)  On about 25 October 2010, the Applicant obtained a Lo Wai Genealogy from another Chan Uk indigenous inhabitant.  The Lo Wai Genealogy is in fact the same as the Respondents’ Genealogy (adduced at the VRE Appeals hearing by the respondents). 

(2)  In about November 2010, the Applicant learnt for the firs time that there was another genealogy called the Wan Lok Genealogy. He also later managed to obtain a copy of the Wan Lok Genealogy from an indigenous inhabitant.

39.  The transcripts of the hearing of the VRE Appeals were also supplied to the Applicant but only on 11 November 2010.

40.  By the time when the Applicant had obtained the additional evidence on the other genealogies and had time to go through the Lo Wai (which is the same as the Respondents’ Genealogy^[14]), he found out that the evidence clearly contradicted the respondents’ claim that they were descended from the male line of either Yip Chung Gong or Yip Wai Gong. However, by then the Applicant was already out of the statutory prescribed time to apply to the Revising Officer for a review of the Decision.

41.  As a result, on 17 December 2010, the Applicant filed his notice to apply for leave to apply for judicial review against the Decision.  Leave was granted by A Cheung J on 22 December 2010.  The Revising Officer was named as the respondent and the EAC as an interested party.

42.  On 10 January 2011, A Cheung J further directed that the Director and the 116 People should also be joined as interested parties to the application for judicial review.  These were duly done by the Applicant.

43.  On 17 January 2011, this Court heard the Applicant’s application for an injunction to restrain the holding of the 2011 Election on 23 January 2011 pending the resolution of the judicial review.  The EAC (represented by counsel) and KW Chan (acting in person) opposed the application^[15]. I refused to grant the injunction on the principal basis (in accepting the submissions of EAC’s counsel) that, if the Applicant was eventually successful in the judicial review, he could challenge the election result by way of an election petition. 

44.  As mentioned above:

(1)   KW Chan and Chan Shui Yan (陳瑞仁) were elected in the 2011 Election, and the Applicant took out the election petition under HCAL 9/2011 to challenge the validity of the election of KW Chan under the 2011 Election. 

(2)   Under the election petition, only KW Chan but not Chan Shui Yan is joined as a respondent.

(3)   I directed that the election petition be heard together with the application for judicial review.

45.  At the hearings of the election petition, KW Chan continues to act in person to oppose it. 

46.  For the judicial review application, the Respondent (i.e, the Revising Officer) and the 1^st and 2^nd Interested Parties (i.e., the EAC and the Director of Home Affairs) are represented but maintain a neutral position.  Mr Chan Chor Yat (the 100^th Interested Party) has been granted legal aid to oppose the judicial review application and is represented at the hearings by counsel Mr Stephen Tang.   All the other 116 People (as interested parties) have not turned up at the hearings and have never taken any active steps in it.

47.  I would first deal with the election petition in this Judgment.

C.  The election petition

C1.    The contentions

48.  The principal ground of challenge of KW Chan’s candidacy to stand for the 2011 Election is premised on the Applicant’s case that KW Chan is not an indigenous inhabitant of Chan Uk and is not eligible to be an candidate for the purpose of the VREO[16]. His election can thus be challenged by way of an election petition under sections 39(1)(a)(i) and (2) of VREO.

49.  The Applicant also challenges the validity of KW Chan’s election on the ground that the 116 People ought not to have been included in the final register of electors as they are not indigenous inhabitants of Chan Uk.  As such, the Applicant says this amounted to a material irregularity occurred in relation to the 2011 Election, and/or to its polling, and/or to the counting of votes as provided under s 39(1)(a)(iv) of the VREO.  KW Chan’s election is therefore also open to be questioned by way of an election petition.

50.  No one has disputed that, if the Applicant could establish the above complaints, KW Chan’s election can properly be challenged by way of an election petition pursuant to s 39(1)(a)(i) and (iv) of VREO^[17]. 

51.  The Applicant’s case on why KW Chan is not an indigenous inhabitant of Chan Uk is a simple one, which could be summarized as follows:

(1)  KW Chan claims that he himself was descended from the male line of Yip Wai Gong.  Yip Wai Gong was one of the five male lines of the 16^th generation of the Chan clan of Chan Uk.  The other four were Yip Chung Gong (叶忠公), Yip See Gong (叶思公), Yip Ying Gong (叶英公) and Yip Yan Gong (叶恩公).

(2)  However, it is clear that in the Respondents’ Genealogy (i.e., the Lo Wai Genealogy), it is expressly provided that, although Yip Chung Gong, Yip Wai Gong and Yip See Gong had sons, their lineage stopped thereafter (“忠惠思三公有子無傳”).  Thus, from this genealogy, KW Chan could not have descended from the male line of Yip Wai Gong as claimed.

(3)  Similarly, the Applicant’s genealogy adduced at the hearing VRE Appeals (i.e., the Ha Wai Genealogy) is also consistent with the Lo Wai Genealogy (i.e., the Respondents’ Genealogy) in showing that KW Chan could not have descended from Yip Wai Gong.  According to the Ha Wai genealogy:

(a)  Yip Wai Gong had one son known as Loi Chiu (來昭) but he died young (“來昭 (早逝)”) and it is not recorded therein that Loi Chiu had any sons.  The lineage of Yip Wai Gong thereby stopped at there.

(b)  Yip Chung Gong (of the 16^th generation) had two sons, respectively Shun Chiu (純昭) and Chu Chai Ng (珠仔伍).  Shun Chiu (then of the 17^th generation) had one son called Ping Kong (秉綱), but the lineage of Chu Chai Ng (also of the 17^th generation) stopped and his wife had left him (“珠仔伍妣出失傳”).  The wife of Ping Kong (of the 18^th generation) died and his lineage also stopped at there (“秉綱公妣逝失傳”).  The lineage of Yip Chung Gong therefore stopped at this generation.

(4)  The accuracy of these genealogies were not challenged at the hearing of the VRE Appeals, and these entries in the Respondents’ Genealogy and the Ha Wai Genealogy clearly and unequivocally rebut KW Chan’s claim that he is descended from the line of Yip Wai Gong.   KW Chan has not shown anything in this proceedings that could validly dispute the accuracies of these two genealogies. 

(5)  Further, the Wan Lok Genealogy also contains similar and consistent entries as that contained in the Lo Wai and Ha Wai Genealogies, which show that the lineage of Yip Chung Gong and Yip Wai Gong stopped at Ping Kong and Loi Chiu respectively.  Therefore, according to the Wan Lok Genealogy, KW Chan also could not have descended from Yip Wai Gong as he claims.   Again, KW Chan has not raised anything that could challenge the accuracy of the Wan Lok Genealogy. 

(6)  In the circumstances, the evidence of these genealogies support clearly and unequivocally that KW Chan cannot be a male descendant of Yip Wai Gong.  He therefore is not (submitted by Mr Tong) an indigenous inhabitant of Chan Uk.

52.  On the other hand, KW Chan relies on the following to seek to rebut the Applicant’s challenges:

(1)  The Computer Genealogy used in the VRE Appeals which shows that there are male descendents from Yip Chung Gong and Yip Wai Gong.  He says he has contributed to the compilation of the Computer Genealogy (which was stated to be made in 2009).

(2)  A handwritten genealogy (“the Handwritten Genealogy”) produced by KW Chan for the first time at the hearing on 11 March 2011, which he says supports that Yip Chung Gong and Yip Wai Gong had male descendents all the way to his generation.  He says the Handwritten Genealogy was compiled by his father.

(3)  He says that the words “無傳” provided in the genealogies relied on by the Applicant should only mean “loss of record” or “cannot be contacted”, but not without any further lineage.  Entries with these words in the Lo Wai, Ha Wai and Wan Lok Genealogies therefore should not be understood to mean that there were no further male descending lines from Yip Chung Gong and Yip Wai Gong.

(4)  There are photos which could show that his father and some of the Chan Uk indigenous inhabitants had visited the ancestral graveyards of the descendants of Chan Uk’s indigenous inhabitants many years ago.

53.  Notwithstanding there are previous Court directions for KW Chan to file evidence to oppose the election petition, KW Chan has not filed any affirmation to set out the matters I summarized at paragraph 52 above and exhibit the Handwritten Genealogy and those alleged photographs.    These are therefore strictly speaking not proper evidence before the Court.

54.  However, I am prepared consider them on a de bene esse basis for the present purpose.

C2.    Discussion

55.  After looking at the evidence placed before me, and taking everything KW Chan has said in Court^[18] (and assuming that they have properly adduced as evidence) to the highest, I am satisfied that the evidence overwhelming demonstrates that KW Chan could not have been a male descendent from Yip Wai Gong.  He is therefore not an indigenous inhabitant of Chan Uk for the purpose of VREO.  My reasons are as follows:

(1)  I accept Mr Tong’s submissions that the Lo Wai Genealogy (ie., the Respondent’s Genealogy), the Ha Wai Genealogy and the Wan Lok Genealogy all clearly show that there are no male descendents from Yip Chung Gong and Yip Wai Gong after the 19^th generation at the latest.  That is long before the generation that KW Chan claims himself to be.  It is important to note that there is nothing before me that could validly challenge the accuracy of these genealogies.

(2)  For this purpose, I reject KW Chan’s contention that the word “無傳” should be understood to mean “cannot be contacted” or “loss of record”.  In my view, the objective, ordinary and clear meaning of the word “傳” is “pass on” and thus these words “無傳” in the context of the genealogy is that “no passing on of the lineage”.  It would be straining their meaning to read them as “cannot be contacted” or “loss of record” as suggested by KW Chan.  

(3)  KW Chan further says that in the Lo Wai Genealogy^[19], when someone is recorded to have no succession, it is written as “無後”.  Thus, KW Chan further says, “無傳” should carry a different meaning which is “without record” or “cannot be contacted”.  In this regard, I also accept Mr Tong’s submissions that what KW Chan says is not evidence of fact but evidence of opinion, something which K W Chan simply has no expertise or basis to give an opinion upon and should not be accepted. This is underlined by the fact that, when this Court asked KW Chan on what basis he said the word “無傳” should mean “loss of record” but not “no further succession”, he gave a self serving answer that as he was a descendent from Yip Wai Gong, it must therefore follow that “無傳” could not mean without further succession.

(4)  In any event, KW Chan’s comparison between “無傳” and “無後” is without merit.  As pointed out by Mr Tong (which I also accept), these two phrases are used in the same section of the genealogy to distinguish between two situations: “無後” is used to refer to a generation where the succession from three men stopped at them as they had no sons “三公俱無後”; while “無傳” is used to refer to the other line (of the same generation) where the man had two sons, but the succession of that male line also then stopped at these two sons as they died young and were without wives: “秀昭公配林氏生二子林生亞奀, 兄弟早故，無配失傳”.   In particular, Mr Tong has also forcefully and rightly pointed out that if “無傳” was intended to be used to denote any loss of record or loss of contact, it would be unnecessary and in fact incorrect to state in the genealogy that these brothers had no wives (“無配”), as this would not have been certain in light of the loss of record or contact.

(5)  Insofar as the Computer Genealogy is concerned, I would reject it as credible evidence of genealogy for the present purpose given that (a) it is contradictory to the above-mentioned unchallenged three genealogies, and (b) there is nothing in the evidence to explain upon what materials and information the Computer Genealogy was compiled, and why it is inconsistent with the other three unchallenged genealogies. 

(6)  I also reject the Handwritten Genealogy as credible evidence as its source and reliability are similarly doubtful, given that (a) there is no reliable evidence whatsoever to explain how it was compiled with and why it is contradictory to the three unchallenged genealogies, (b) there are no acceptable explanations as to why this is only produced for the first time at the hearing but not earlier by way of an affirmation. 

(7)  In relation to the alleged photographs which the court has not seen, even if they are pictures of KW Chan’s father visiting ancestral graveyards with some other indigenous inhabitants of Chan Uk, such evidence without more is at best neutral to the question of whether KW Chan’s father and thus KW Chan himself is an indigenous inhabitant of Chan Uk. There is nothing objectively to prevent anyone, even if he is not an indigenous inhabitant, from going to these graveyards to pay tribute.  I therefore would not accept that these photos, even if produced and shown to the court, would outweigh the clear and overwhelming evidence of the above-mentioned three genealogies which shows that KW Chan cannot be an indigenous inhabitant of Chan Uk by descending from the line of Yip Wai Gong.

56.  For these reasons:

(1)  The evidence has on balance clearly established, and I so conclude, that KW Chan is not an indigenous inhabitant of Chan Uk for the purpose of VREO.

(2)  I therefore further hold that:

(a)  he is not eligible to be registered as an elector or nominated as a candidate for the 2011 Election for electing indigenous village representatives of Chan Uk under sections 15 and 22 of the VREO.

(b)  KW Chan is thus disqualified from being elected as a village representative for Chan UK under the 2011 Election pursuant to section 23(1)(f) of VREO.

57.  Further, for the reasons I set out below when I deal with the judicial review application, I am also satisfied that the 116 People could not have descended from the male line of either Yip Chung Gong or Yip Wai Gong.  They are therefore not indigenous inhabitants of Chan Uk and are not eligible to be registered as electors of Chan Uk.  The fact that they have been so included in the final register of electors for the 2011 Election amounts to a material irregularity in relation to the 2011 Election, its polling and/or the counting of the votes thereof under s 39(1)(a)(iv) of the VREO. 

C3.    Conclusion under the Election Petition

58.  I therefore order and declare that KW Chan was not duly elected under the 2011 Election.

D.  The judicial review

D1.    The grounds and issues

59.  In essence, the Applicant says the Decision should be quashed for the following two main reasons:

(1)  The VRE Appeals hearing was conducted in a manner which was in breach of the Applicant’s right to a fair hearing. 

(2)  The Decision is clearly wrong or is based on a material error of fact in finding that the 116 People are indigenous inhabitants of Chan Uk when there is clear documentary evidence to the contrary.  The Decision is therefore also irrational, unreasonable and an error of law.

60.  In light of these grounds, Mr Tong, SC for the Applicant submits that there are three issues arising from the judicial review:

(1)  Whether there was procedural unfairness in the conduct of the hearing of the VRE Appeals.

(2)  Whether in making the Decision, the Revising Officer made a material error of fact which renders the Decision irrational, unreasonable, unfair and an error of law.

(3)  Whether the Court should deny the Applicant his relief even when a case that the Decision ought to be quashed has been made out given that the Applicant had failed to pursue the remedy of applying for review of the Decision by the Revising Officer.

61.  The Revising Officer as the Respondent takes a neutral stance to the judicial review application, and so do the EAC and the Director (the 1^st and 2^nd Interested Parties), save that Mr Wong for them has made helpful submissions regarding whether certain remedies could be granted as sought by the Applicant, something which I would discuss at the later part of the Judgment.  None of the 116 People (as Interested Parties) have filed any evidence in opposition under the judicial review, but Mr Tang (for the 100^th Respondent) opposes the judicial review although he does not object to the above formulation of the issues.  All the other interested parties, being the rest of the 116 People, have not participated in the proceedings at all. 

62.  I will address these issues as formulated as follows.

D2.    Whether there was procedural unfairness of the VRE Appeals

63.  Mr Tong submits that there was procedural unfairness of the hearing before the Revising Officer.   His principal contentions run as follows:

(1)  It is axiomatic if there is a hearing concerning a person, sufficient notice to attend must be given and if that person wishes to present a case, he must be given sufficient time for preparation and to gather his thoughts and evidence^[20].

(2)  In light of the facts summarized above, the Applicant was prejudiced because he was not given sufficient time to prepare his case including his reply to the respondents’ case and to gather supporting evidence.  In particular:

(a)  The Applicant and his legal representatives were given less than 36 hours to prepare for the hearing of the VRE Appeals.

(b)  At the day of the hearing, the Applicant and his legal representatives were given very little time (during the short adjournment) to look at and consider the documents provided by HAD North (which ran to 300 odd pages) and the evidence the respondents wanted to produce just before the hearing.

(c)   The Applicant and his legal representatives only had 10 minutes or so to look at the Respondents’ Genealogy. 

(d)  There was thus simply insufficient time for the Applicant and his legal representatives to properly review the documents.

(e)   The Applicant and his legal representatives were not given a full copy of the Respondents’ Genealogy for the purpose of the hearing and thus they had difficulty following KW Chan’s evidence-in-chief and were unable to refer to that genealogy when preparing questions for cross-examinations.

64.  Mr Tong’s arguments on unfairness premised therefore essentially and effectively on the complaints that the Applicant and his legal representatives were not (a) given sufficient time to prepare for the hearing, and (b) copies of the necessary documents relied on by the Respondents to conduct the hearing.

65.  I reject the arguments.

66.  The Applicant’s own evidence shows that at no time did he or his legal representatives (a) ever complain to the Revising Officer that, in light of what had happened, they did not have sufficient time to prepare for and properly argue at the hearing, (b) ever ask the Revising Officer to grant them what they regarded as sufficient time to prepare for the hearing and to gather further evidence, (c) ever ask the respondents to provide them a full copy of the Respondents’ Genealogy or ask the Revising Officer to direct the respondents to so give them such a copy.

67.  There is nothing to suggest that, had they asked for the above, the Revising Officer would have refused to grant them or any of them.  In these circumstances, I cannot see how it could be said that there was procedural unfairness of the hearing for lack of sufficient time to enable the Applicant to prepare for and properly argue the VRE Appeals.

68.  Mr Tong cited R v Northern Yorkshire Regional Health Authority ex p Trivedi [1995] 1 WLR 961 at 975B-E to support a submission that when it can be shown that the Applicant simply did not have sufficient time to properly review the documents and to formulate a considered reply, it is neither here nor there that the Applicant’s legal representatives did not make any forensic protest or did not apply to adjourn the hearing.

69.  In Northern Yorkshire, a medical doctor of the National Health Service was found by the medical service committee to be in breach of his terms of service for his late response to a call for a home visit.   He appealed that decision to the statutory appeal unit.  However, at the appeal, without any advance notice or warning to the medical doctor and his legal representative, the appeal unit identified three categories of complaint, raised matters rejected by the medical service committee and questioned the doctor about the adequacy and the correctness of the diagnosis and treatment. The doctor did not call any witnesses.  The appeal unit recommended the appeal be dismissed, relying both on the adverse finding of the medical services committee and on the specific matters of patient care and treatment, not recognizably within the three categories of complaint, which had arisen for the first time at the appeal.  The doctor asked the director of the appeal unit to reopen the appeal to receive further evidence and to clarify matters canvassed at the appeal.  This was refused.   The doctor brought an application for judicial review of the decisions to dismiss the appeal and to refuse to reopen the hearing to consider further evidence.  One of the complaints at the judicial review application was procedural unfairness at the appeal hearing. 

70.  Thus, that is a case where “regardless of the lack of any forensic protest”, the fact was that the doctor “did not even know before the oral hearing or even when he was questioned about the various matters that they were to be considered as part of the complaint against him”^[21]. It is under those circumstances that Auld J did not think the lack of a protest by the doctor’s legal representative or an application for an adjournment mattered in his holding that there was procedural unfairness of the hearing before the appeal unit.  These new matters were raised by the appeal unit itself which it therefore knew clearly that they were not subject matters of the appeal (vis-à-vis the finding and decision of the service committee), and that it had not given any advance indication to the doctor that these would be raised and considered at the appeal.  In other words, the inability of the doctor and his legal representatives to properly deal with these new matters was and must be so obvious to the appeal unit, or given that the doctor did not even know that these matters were to be considered as part of the complaint against him, there was simply no question of his raising a protest or seeking an adjournment.

71.  This is very different from the present case: 

(1)  There is no suggestion that the Revision Officer somehow should have known by himself that the Applicant did or would not have sufficient time to prepare and proper argue the VRE Appeals.   The evidence also shows that by the latest at the commencement of the hearing, the Applicant was aware that part of the respondents’ allegation was that they were descended from the line of Yip Wai Gong^[22].

(2)  There is also no suggestion that had the Applicant asked for an adjournment to enable him to properly prepare for the hearing and for the Respondents to provide a full copy of the Respondents’ Genealogy, the Revising Officer would have refused them.

72.  For these reasons, I am not satisfied that the Applicant has shown that there was procedural unfairness of the hearing of the VRE Appeals.   I would reject this ground of judicial review.

D3.    Whether in making the Decision, the Revising Officer made a material error of fact which renders the Decision irrational, unreasonable, unfair and an error of law

73.  The Applicant’s case that the Decision was reached with a material error of fact is a simple one, which is similar to the one I set out above when I dealt with the election petition.  I will summarise them again briefly as follows:

(1)  At the hearing of the VRE Appeals, KW Chan gave evidence that the respondents were all descended from the lines of Yip Chung Gong and Yip Wai Gong.  They were two of the five male lines of the 16^th generation of the Chan clan of Chan Uk. The other three were Yip See Gong (叶思公), Yip Ying Gong (叶英公) and Yip Yan Gong (叶恩公).

(2)  However, it is clear that in the Respondents’ Genealogy (i.e., the Lo Wai Genealogy), it is expressly provided that, although Yip Chung Gong and Yip Wai Gong both had sons, their lineage stopped thereafer (“有子無傳”).

(3)  In the circumstances, the respondents’ own evidence adduced at the hearing also shows and supports that the respondents could not have descended from Yip Chung Gong and Yip Wai Gong as claimed.

(4)  The Applicant’s genealogy adduced at the hearing (i.e., the Ha Wai Genealogy) is also consistent with the fact that the respondents could not have descended from Yip Wai Gong and Yip Chung Gong. According to this genealogy:

(a)  Yip Chung Gong (of the 16^th generation) had two sons, respectively Shun Chiu (純昭) and Chu Chai Ng (珠仔伍).  Shun Chiu (then of the 17^th generation) had one son called Ping Kong (秉綱), but the lineage of Chu Chai Ng (also of the 17^th generation) stopped (妣出失傳).  The lineage of Ping Kong (of the 18^th generation) also stopped with him  (妣逝失傳).

(b)  Yip Wai Gong had one son known as Loi Chiu but he died young (來昭(早逝)) and it is not recorded therein that Loi Chiu had any sons.

(5)  The accuracy of these genealogies were not challenged at the hearing of the VRE Appeals, and these entries in the Respondents’ Genealogy and the Ha Wai Genealogy clearly and unequivocally rebut the respondents’ claim that they are descended from the lines of Yip Chung Gong and Yip Wai Gong.   In particular, the Respondents’ Genealogy was produced and relied upon by the respondents at that hearing.

(6)  As the Revising Officer’s attention was never drawn to these entries by both parties at the hearing, the Decision was thus made without reference or any regard to the said clear and unchallenged evidence which rebuts the respondents’ claim of being indigenous inhabitants of Chan Uk.   

(7)  Further, the Respondents’ Genealogy and the Ha Wai Genealogy as evidence should prevail over the Computer Genealogy, as the latter is of a much more recent vintage and there is nothing to show on what basis the Computer Genealogy was made.

(8)  In the premises, it is clear that the Revising Officer should have found that the 116 People are not indigenous inhabitants of Chan Uk.

(9)  This amounts to a material error of fact and the Decision is in any event plainly wrong.  The Decision (which effectively confirms the respondents’ claim to be indigenous inhabitants of Cha Uk) must also be unreasonable and irrational (in the public law sense) in light of this material evidence.   It should thus be quashed.^[23]

(10)  Further, this mistake of fact gave rise to unfairness in the present case. As such, it is also a mistake of law which can be challenged by way of judicial review.^[24]

74.  After the Decision, the Applicant further managed to obtain the Wan Lok Genealogy from other indigenous inhabitants of Chan Uk.  It contains similar and consistent entries as those mentioned above under the Lo Wai (i.e., the Respondents’ Genealogy) and the Ha Wai Genealogy, showing that the lineage of Yip Chung Gong and Yip Wai Gong stopped at Ping Kong and Loi Chiu respectively.  For the present purpose, neither Mr Tang (for the 100^th Interested Party) or any of the other 116 People has raised any challenge on the accuracy of the Wan Lok Genealogy. 

75.  Insofar as necessary, Mr Tong seeks leave to reply on the Wan Lok Genealogy under the Ladd v Marshall^[25] principles or exceptional circumstances for the interest of justice^[26] to support this ground of the judicial review application. 

76.  For the following reasons, I agree that the Decision should be quashed, as (a) the Revising Officer failed to take into account of relevant materials in reaching the Decision, or (b) it was made with a material error of fact and is unreasonable or irrational:

(1)  In my view, the unchallenged evidence of the Respondents’ Genealogy and the Ha Wai Genealogy objectively and clearly show that the respondents (and thus the 116 People) could not have descended from the lines of Yip Chung Gong and Yip Wai Gong, which was the only basis relied on by the respondents in the VRE Appeals to support their claim to be the indigenous inhabitants of Chan UK.  For the same reasons I have set out above in allowing the election petition:

(a)  I accept Mr Tong’s submissions that the entries (mentioned above) in these genealogies, objectively read and understood, mean that the respective lineage of Yip Chung Gong and Yip Wai Gong had stopped well before it could have descended to the respondents. 

(b)  This uncontroverted objective evidence should prevail over the Computer Genealogy relied also on by the respondents in the VRE Appeals.  As in the election petition, none of the 116 People has adduced any evidence to explain the materials based upon which the Computer Genealogy was compiled, and why it carries materials in relation to the descendency from Yip Chung Gong and Yip Wai Gong which are inconsistent with and contradictory to the other two unchallenged genealogies.

(2)  In the premises, the Decision is one which was obviously wrong in light of these two unchallenged genealogies.  Insofar as the Decision confirmed a finding that the 116 People are indigenous inhabitants of Chan Uk, the Decision also amounts to a material error of fact which renders it unreasonable or irrational. 

(3)  Further, in coming to the Decision, the learned Revising Officer, without any fault on him, had failed to take into consideration of the above-mentioned fundamentally relevant entries in the Respondents’ and Ha Wai Genealogies.  

(4)  I have come to these conclusions without the need to refer to the additional Wan Lok Genealogy which Mr Tong has sought leave to rely on if necessary.  But if I had to decide on Mr Tong’s said application for leave, I would have granted it on the basis that the circumstances satisfy the Ladd v Marshall principles as submitted by Mr Tong.  The Wan Lok Genealogy, once admitted, would have further fortified my conclusion that the Decision should be quashed as it amounts to a material error of fact.  I repeat my observations made at paragraph 55 above.

77.  Mr Tang (for the 100^th Interested Party) submits effectively that the Decision should not be quashed because it was the Applicant’s own fault (as it is the Applicant’s appeal in the VRE Appeals) in failing to draw the Revising Officer’s attention to the relevant entries in the Respondents’ and Ha Wai Genealogies.  It is therefore not open (further submitted by Mr Tang) to the Applicant to complain now.

78.  I am not persuaded by Mr Tang’s submissions.  Even if the initial burden is on the Applicant to pursue his appeals, given that this Court (in the exercise of its supervisory role) is now presented with the evidence (which was also placed before the Revising Officer) which shows (as I concluded above) that the Decision is clearly wrong under the established grounds of judicial review, it must be open to it to quash the Decision in the present circumstances.  In this regard, I note that in making his submissions, Mr Tang fairly (and rightly so I think) accepts that, if the Revising Officer had been properly referred to these entries in the genealogies, he (the Revising Officer) ought not to have arrived at the Decision in concluding that the 116 People are indigenous inhabitants of Chan Uk.

D4.    Conclusion under the judicial review

79.  I will therefore quash the Decision.  In doing so, I have exercised my discretion to accede to the application even though the Applicant has failed to exhaust all available avenues of relief by failing to ask the Revising Officer to review the Decision before applying for judicial review.  I am satisfied that the circumstances (as summarised above) leading to the Applicant’s failure to do so render the failure excusable, and in light of the interest of justice, I should so exercise my discretion.

E.  Further remedy sought

80.  In allowing the election petition and declaring that KW Chan was not validly elected, the EAC is under a statutory duty to hold a by-election to fill up KW Chan’s vacancy as an elected indigenous inhabitant representative of Chan Uk.   The by-election would have to be held as soon as practicable, as provided under section 6 of the Electoral Procedure (Village Representative Election) Regulation (Cap 541L).

81.  However, Mr Tong for the Applicant observes that, unless a new one is published, the existing final register of electors of Chan Uk (published for the 2011 Election which has included the 116 People as registered electors) would prima facie still apply to the by-election. This cannot be right, says Mr Tong, in light of my decision to quash the Decision and my ruling that the 116 People are not indigenous inhabitants of Chan Uk.   To allow these 116 People, who are still on the existing final register, to vote in the by-election would render my decision in the judicial review nugatory and cause obvious injustice.  It must also be legally wrong to do so.

82.  Mr Tong therefore asks this Court, in such circumstances, to also direct and order the Electoral Registration Officer to immediately proceed to compile a fresh provisional register of electors for the purpose the by-election, and the fresh provisional register must take into account of this Court’s decision in relation to the 116 People’s eligibility as indigenous inhabitants.  Although not specifically provided in the VREO, Mr Tong says this Court must have the power to so order in the interest of justice. In particular, Mr Tong says under s. 3 of VREO, the Electoral Registration Officer is provided with the statutory power to compile a provisional register by 27 August each year, without expressly limiting that he could only compile such a register once every year.  The same applies to the subsequent publication of the final register.

83.  With respect to Mr Tong, I reject his submissions and would adopt the submissions of Mr Wong (for EAC) that the present legislative framework does not permit the Court to direct the Electoral Registration Officer to so compile a fresh provisional register.  The reasons are principally as follows:

(1)  The VREO and related statutory rules have provided specific timetables and frameworks for matters related to or arising from the compilation of the provisional and final registers that need to be carried out or done.

(2)  Under s. 2 of the VREO, an elector in relation to a village means a person who is registered as an elector for the village in the final register for that village.

(3)  As mentioned above, under s. 17 of VREO, the Electoral Registration Officer shall compile and publish (a) a provisional register not later than 27 August in each year, and (b) a final register of electors for that village not later than 20 October in each year, and the starting point of a provisional register shall be based on the existing final register for a village that is in effect at the time when the provisional register is compiled.  Under s. 18, a final register takes effect on the date of its publication and continues to have effect until the publication of the next register for that village.

(4)  S. 17(1) of VREO further specifically provides that the Electoral Registration Officer shall compile and publish the provisional and final registers in accordance with the rules made under the EACO.

(5)  One of these regulations is the Electoral Affairs Commission (Registration of Electors) (Village Representative Election) Regulation (Cap 541K) (“the Registration Regulation”).  It has provided various specific timetables for the registration of electors. Some of the notable examples are:

(a)  under section 9, any person who seeks to register in a provisional register must make an application to the Electoral Registration officer on or before 16 July of that year for registration in the provisional register to be compiled for the year.  Thus, a person is given a statutory right to seek to be registered in the provisional register of that year by 16 July. 

(b)  Under sections 23 and 25, any person who wants to lodge an objection or a notice of claim in relation to the compilation of a provisional register must do by 9 September of that current year, if he wants any correction to be made in the provisional register and transported to the final register for that year.  In other words, a person has a statutory right up to 9 September of each year to raise such an objection or claim.   The Electoral Registration Officer after receiving these notices of objection or claim has to deliver them to a Revising Officer for determination. Under section 2(5)(a) of Village Representative Election (Registration of Electors) (Appeals) Regulation (Cap 576A) (“the Appeals Regulation”), the Revising Officer shall fix a hearing date in relation to these objections or claims between 27 August and 23 September in that year^[27]. 

(c)   Under section 29(5) of the Registration Regulation, the Electoral Registration Officer can only take into consideration of a ruling of the Revising Officer made between 28 August and 5 October of that year in the compilation of the final register.  In other words, any person dissatisfied with any decisions made by an Electoral Registration Officer in relation to the compilation of a provisional register (which would then be used to compile the final register) can only do so within a specific period of time as provided by the regulation. 

(6)  These time-specific regulations are related to important and significant steps and procedures that are relevant to and affect potential persons’ rights to register themselves as electors or make complaints in relation to the compilation of the provisional and final registers.   The regulations do not provide other time regimes, frameworks or discretion to the Electoral Registration Officer to fix or set down other timetables and frameworks.

(7)  Therefore, any direction by this Court to require the Electoral Registration Officer to compile a fresh provisional register now for the anticipated by-election would not and would in no way fit into these statutory specific timeframes and timetables.  There is simply no discretion to get around these statutory prescribed timetables.

(8)  In the circumstances, the legislative frameworks simply prevent and do not permit, and thus the Court has no jurisdiction to so direct, the Electoral Registration Officer to compile a fresh provisional register other than the one which would fit into all these various statutory timeframes and timetables.

84.  Mr Tong has sought to argue that the VREO and the relevant regulations are only intended to deal with the primary election in the normal cycle but not by-elections.  As such, he further contends, Mr Wong’s above submissions simply do not apply and the Court has a “free hand” to so direct the Electoral Registration Officer to immediately compile a fresh provisional register specifically for the anticipated by-election.

85.  With respect, I reject this submission. As submitted by Mr Wong for EAC, “election” is defined under section 2(1) of the VREO to mean a village ordinary election or a village by-election. This definition is extended to the Appeals Regulation (being a regulation made under VREO) and the Registration Regulation (by way of section 1(1) therein).  I am therefore satisfied that the provisions in the VREO, the Appeals Regulation and the Registration Regulation are intended to apply equally to an ordinary village election as well as a village by-election

86.  For the above reasons, I conclude that the Court does not have the jurisdiction to order and direct the Electoral Registration Officer to immediately proceed to compile a fresh provisional register for Chan Uk which does not fit into the statutory timetables as prescribed under the relevant regulations as mentioned above.

87.  I however note that:

(1)  The EAC is under a statutory duty to hold a by-election for Chan UK as soon as practicable.    At the same time, I believe the EAC is unlikely to proceed to hold a by-election in such a way the effect of which would render nugatory my ruling under the judicial review.

(2)  At the same time, under s. 3 of VREO, the Electoral Registration Officer has to compile a new provisional register for the year of 2011 to 2012 by August 2011, and a final register by October 2011.   Similarly, I am confident that in compiling this new provisional register, the Electoral Registration Officer would take into consideration my rulings under the election petition and judicial review.

(3)  In the circumstance, in all reality, the by-election is likely to take place sometime in November 2011.  In my view, for the present purpose, this is unlikely to cause any real injustice or unnecessary delay.

88.  Notwithstanding the above, I would echo Mr Tong’s concern that there may well be situations where, after a successful attempt to challenge a village representative election result on the basis of an invalid or defective register of electors, a by-election could not effectively be held for a long time if it has to follow all the statutory timetables provided for under the existing legislative frameworks as discussed above.  This may not be satisfactory and the existing legislative frameworks are to that extent deficient and inadequate.  However, the Court is only here to interpret and apply the relevant statutes, and it is entirely a matter for the Administration and the legislature to consider whether it is necessary to amend the relevant legislations to tackle these potential problems.

F.  Costs

89.  There is no reason why costs should not follow the event. I would make an order nisi that:

(1)   Costs of the election petition be to the Applicant to be taxed if not agreed.

(2)   Cost of the judicial review be to the Applicant and to be paid by the 100^th Interested Party, being the only party who has actively opposed the application^[28], to be taxed if not agreed.  The 100^th Interested Party’s own costs be taxed in accordance with the legal aid regulations.

90.  The order nisi shall be made absolute 14 days from today, unless any of the parties applies by Summons to vary it.

91.  Finally, I thank counsel for their assistance.