NG KOON FAT v. LI WAI CHI, A REVISING OFFICER SITTING AT SHATIN MAGISTRATES' COURTS AND ANOTHER

CACV 44/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 44 OF 2012

(ON APPEAL FROM HCAL NO. 134 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon Fok JA:

1.  I agree with the judgment of the Barma JA.

Hon Chu JA:

2.  I agree with the judgment of Barma JA and have nothing to add.

Hon Barma JA:

3.  This is an appeal by Ng Koon Fat (“the Applicant”) against the judgment of Lam J (as he then was) given on 3 February 2012 dismissing the Applicant’s application for judicial review of the decisions of the Electoral Registration Officer (“ERO”) and the Revising Officer (“RO”) under the Village Representative Election Ordinance, Cap 576 (“the Ordinance”), by which the 1^st to 23^rd Interested Parties (“the Interested Parties”) were included in the 2010 electoral register of persons entitled to vote in the election of the Indigenous Inhabitant Representative (“IIR”) for Shek Lung Tsai (“the Village”).

4.  At the beginning of the hearing, Mr Tong SC, appearing for the Applicant, sought leave to file a Revised Supplementary Notice of Appeal dated 21 November 2012.  Mr Dykes SC, representing the Interested Parties, did not oppose the application, which was accordingly granted.

5.  The Village was originally situated in a remote and hilly part of Ma On Shan.  It has since been relocated to a site in Sai Kung, and is now known as Shek Lung Tsai New Village, but this does not affect any of the issues that arise in these proceedings.

6.  Under the Ordinance, there is a dual system for the election of village representatives in Hong Kong.  Villages are listed as existing villages under Schedule 1 of the Ordinance, or as indigenous villages under Schedule 2 of the Ordinance.  It is also possible for a village to be both an existing and an indigenous village, in which case it will be listed under both Schedules.  This is the case in relation to the Village.  In the case of an indigenous village, IIRs are elected from amongst indigenous inhabitants of the village concerned, while for an existing village, a Resident Representative (“RR”) is elected from amongst its residents.  As the Village is both an existing and an indigenous village, separate elections are held to elect an IIR and an RR for it.  In this case, we are concerned only with the IIR election in respect of the Village.

7.  To be eligible to vote in the IIR election for a village, it is not necessary for the elector to be a current resident.  Rather, he or she must be an “indigenous inhabitant” of the village, or the spouse or surviving spouse of an indigenous inhabitant (see section 15(5) of the Ordinance).  An “indigenous inhabitant” is relevantly defined by section 2 of the Ordinance as follows:-

“(a) In relation to an Indigenous Village that existed in 1898 (whether or not the name the Village now has is the same name it had in 1898) [indigenous inhabitant] means –

(i) a person who was in 1898 a resident of the Village; or

(ii) a person who is descended through the male line from a person mentioned in subparagraph (i);

… ”

8.  The Applicant had, for some time prior to 2011, been the IIR for the Village.  He intended to stand for re-election in the IIR election to be held in 2011.  According to the Applicant, the village has a population of about 100 persons, all of whom, like him, are surnamed Ng.  At some time prior to the previous election held in 2007, some of the Interested Parties (all of whom are related to one another and are surnamed Fung) had registered as electors for the Village’s IIR, and had taken part in the 2007 election without any challenge to their eligibility to be so registered.  However, prior to the 2011 IIR election, it appears that further persons surnamed Fung registered as electors with the result that the provisional electoral register for the Village’s IIR election included the 23 Interested Parties (in the event, the 12^th Interested Party, Madam Fung Ying, withdrew from the proceedings prior to the hearing below, was not represented and took no part in either the hearing before Lam J or this appeal).  The Applicant was dissatisfied with the inclusion of the Interested Parties by the ERO on the provisional register of electors, and appealed against such registration.  This led to the proceedings before the RO.  There were two proceedings before the RO: the first was the appeal against the decision of the ERO, which took place on 14 and 17 September 2010, at which the RO confirmed the decision of the ERO; the second was a review hearing which took place on 29 September 2010, at which the RO affirmed his earlier decision.

9.  Aggrieved with the decisions of the RO, the Applicant applied for judicial review on 23 December 2010.  In the event, the 2011 IIR election for the Village went ahead on the basis of the register as it stood, with the inclusion of the Interested Parties, and the Applicant was re-elected as the Village’s IIR notwithstanding their inclusion.  The outcome of the judicial review would not, therefore, affect the result of that election.  Having been elected as IIR in 2011, the Applicant’s term of office will run until 2015.

10.  Further, it should be noted that under section 7(2) of the Ordinance, the register of electors is to be compiled each year, and as a result, there will be fresh opportunities to raise objection in respect of the provisional register compiled in each subsequent year.  However, section 17(3) of the Ordinance provides that the provisional register in each year shall be based on the final register of the preceding year.

11.  Neither the 1^st nor the 2^nd Respondent (the RO and the ERO) took part in the hearing before Lam J.  The 2^nd Respondent (the ERO) was initially represented, but took no further part in the proceedings after a directions hearing at which it was accepted on her behalf that notwithstanding that section 19(2) of the Ordinance provides that the decision of the RO is final, such decision is nevertheless susceptible to challenge by judicial review in an appropriate case.  The proceedings below were therefore a contest between the Applicant and the Interested Parties.  At the hearing before us, the contest was likewise between the Applicant, represented by Mr Tong SC and Mr Yau, and the Interested Parties, represented by Mr Dykes SC and Mr Pun, as the 1^st and 2^nd Respondents were excused from appearing, having indicated that they took a neutral position in respect of the appeal.

12.  At the hearings (both the appeal and the subsequent review) before the RO, the RO took the view that there were two relevant questions for his determination:-

(1)   Whether there were any persons surnamed Fung living in the Village in 1898?

(2)   If so, whether the Interested Parties were the descendants of such persons.

He also took the view that the initial burden of putting forward evidence to establish these matters lay with the Interested Parties, and that if such evidence was produced, the evidential burden would shift to the Applicant.  Before us, both Mr Tong and Mr Dykes, in my view rightly, accepted that these were the relevant questions for determination by the RO, and that his approach to the evidential burden of establishing these matters was correct.

13.  It is also necessary to note (as both sides also accepted) that the decisions of the RO were administrative in nature.  As a result, the procedure adopted was different from that in a court of law.  The Ordinance does not prescribe rules for the use and admission of evidence, and the rules of evidence which would be applicable to legal proceedings did not apply.  Similarly, little is laid down in respect of the procedure to be followed, and the RO did not give a formal judgment or reasons for his decision.  Instead, the RO received letters from the parties’ solicitors making representations, and enclosing documentary evidence for his consideration.  As appears from the transcript of the proceedings (both at the appeal and at the review hearing), he made observations as to the evidence put forward by the Interested Parties in the course of receiving oral submissions as to such evidence, and simply addressed the main issues as he saw them at the end of the hearing, without specifically addressing the different pieces of evidence to which he had been referred.  It is therefore necessary to ascertain the way in which he regarded and treated such evidence from his observations appearing in the transcripts.

14.  It was also common ground that the observations of Lord Diplock in Mahon v Air New Zealand [1984] 1 AC 808 at pages 820-1 were applicable to the approach that should be adopted in considering the course taken by the RO.  There, Lord Diplock stated:-

“The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision upon evidence that has some probative value in the sense described below. The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests … may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made.

The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice. What is required by the first rule is that the decision to make the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.

The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even thought it cannot be predicted that it would inevitably have had that result.”

15.  For the purposes of this case, it is the first of the two rules referred to by Lord Diplock that is of relevance – i.e. the need for the findings made in relation to the two questions posed by the RO to be based on some material that tends to support the finding, or to show the existence of facts consistent with it.

16.  Finally, both sides accepted that the court should only interfere with the findings of the RO if it were satisfied that they were Wednesbury unreasonable – that is findings which were not such as a reasonable tribunal could reach, or which were not within the range of reasonable findings.  In considering this question, however, it seems to me that it is proper for the court to have regard to the reasoning of the RO, since it is against the background of that reasoning that the reasonableness or otherwise of the RO’s findings and determination should be assessed.  The court must, however, bear firmly in mind that it should not interfere with a finding or decision of the RO unless it is satisfied that it is clearly or obviously wrong.

17.  In this case, a number of pieces of evidence were placed before the RO in support of the Interested Parties’ contention that there were, in 1898, persons surnamed Fung inhabiting the Village, and that the Interested Parties were descended from such inhabitants through the male line, or were spouses or surviving spouses of such descendants.  These were as follows:-

(1)   A number of statements, including in particular a statement by the 9^th Interested Party, Fung Tak Keung, in which he stated that when he was young, he had been told by his father, Fung Hoi Ching, that their ancestors had migrated from Enping in Guangdong Province to the Village during the reign of Emperor Tongzhi.  He said that his father had learnt from his own father (Fung Tak Keung’s grandfather), Fung Hing (who was also known as Fung Guan Fong) that they had an ancestor named Fung Yam Fat (it is the Interested Parties’ assertion that Fung Yam Fat was the father of Fung Hing, grandfather of Fung Hoi Ching, and great-grandfather of Fung Tak Keung).  The statement goes on to say that Fung Hoi Ching learnt from Fung Hing that Fung Hing moved away from the Village to Ngau Chi Wan to make a living when he was a teenager (the statement in fact refers to this having happened when Fung Hing was over ten years old), and that an uncle (the brother of Fung Guan Fong) known as Fung Guan Wah migrated to another village, Sha Tin Tau.

(2)   A book entitled “Fung Hing Qian Hou Ba Zi” (“the Book”), in which were recorded the names and dates of birth of a number of persons surnamed Fung, along with certain other details pertaining to them.

(3)   A photograph of a grave tablet of a deceased person by the name of Fung Fat Choi.

(4)   A letter from the Sai Kung Rural Committee to the Sai Kung District Office dated 3 July 1993, which certified that Fung Fat Choi was an indigenous inhabitant of Shek Lung Tsai Village, Sai Kung, New Territories, and was buried during the reign of Tongzhi at Tin Chang Wu, on the peak of Wong Chuk Shan Village.

(5)   A copy of the Schedule to the Block Crown Lease for Demarcation District 200, which was prepared or amended in 1907, stating that one of the lots in the Village, House Lot No. 4, was owned by Fung Yam Fat, whose address was given as Sha Tin Tau (and not the Village).

(6)   A bundle of original crown rent receipts in respect of the crown rent payable on House Lot No. 4 for the years from 1961 to 1997.  These were produced on the second day of the appeal hearing before the RO by a person named Fung Wing Cheong.  Although surnamed Fung, Fung Wing Cheong was not one of the Interested Parties, and was in fact a registered elector for the IIR elections in respect of Sha Tin Tau, and not the Village.

18.  From the transcript of the hearings, it appears that (as Mr Tong submitted) the RO regarded the last two of these items of evidence as being of particular significance and probative value in relation to the two questions he had posed himself.  It appears that he regarded the entry in the Schedule to the Block Crown Lease as evidence that showed that Fung Yam Fat resided at the Village in 1898 on the basis that it was unlikely that someone would have owned land in such a remote place without actually inhabiting there, and viewed the crown rent receipts as evidence that the Interested Parties were descendants of Fung Yam Fat, on the basis that only such descendants would have continued to pay the crown rent in respect of the property over such a long period of time.

19.  It also appears from the transcripts of the hearings that the RO did not regard the other documentary evidence submitted (the items mentioned in paragraphs 17(2) to (4) above) as being of real probative value.  In relation to the Book, he described it as being something of a mess, with annotations and entries that were apparently made at different times, some of which were crossed out or corrected, and others which were mutually contradictory.  In particular, in relation to Fung Hing (or Fung Guan Fong) himself, two dates of birth were given – the earlier being 1857 and the later being 1888.  The RO made it clear that he did not regard the Book as a genealogy – a record of the line of descent within a clan, but as no more than someone’s record of the dates of birth of the people listed in it.  It does not appear, therefore, that the RO placed reliance on it. Similarly, he noted that the grave tablet had been erected, and the information on it engraved, long after the death of Fung Fat Choi, and that the relationship between those who had erected the tablet and Fung Fat Choi was not clear.  He therefore does not appear to have regarded it as reliable evidence either.  Finally, in relation to the letter of 3 July 1993, the RO expressed doubt as to what the letter in fact established, as Shek Lung Tsai village in Sai Kung was not the Village itself, but the place to which it had been relocated.  As a result, there could be no indigenous villagers of the relocated village, which was what the letter referred to.  It therefore appears that he placed no reliance on this document either.

20.  As for the statement of Fung Tak Keung, it does not appear that the RO placed much, if any, weight on it either.  In any event, it would not, on its own, suffice to establish the matters that needed to be established – although it refers to the line of descent from Fung Yam Fat to the 9^th Interested Party, it does not, in relation to Fung Yam Fat, provide any indication of whether and if so, when, he lived in the Village.  Although it suggests that Fung Guan Fong lived in the Village until sometime after his tenth birthday, it provided no information as to when he was born (and the Book provided two different dates as his date of birth).  Further, the focus on the RO’s part on Fung Yam Fat as the member of the Fung family residing at the Village (a focus which was shared by the Interested Parties’ solicitors in their representation letter dated 29 September 2010) tends, I think, to show that the statement was not regarded as being of much assistance.

21.  This left the two pieces of evidence on which the RO clearly did rely – the entry in the Schedule to the Block Crown Lease and the bundle of crown rent receipts.  However, as Mr Tong correctly points out, neither of these items of evidence are actually of logically probative value in establishing the matters that needed to be established in order to conclude that the Interested Parties were indigenous inhabitants of the Village.

22.  So far as the question whether Fung Yam Fat was an inhabitant of the Village as at 1898 is concerned, the RO considered that his ownership of land in the Village as recorded in the Schedule to the Block Crown Lease was evidence of this.  However, it is clear from that Schedule that the address stated for Fung Yam Fat was not the Village (as was the case in respect of the owners of many other House Lots mentioned in the Schedule) but Sha Tin Tau.  This suggests that as at the time when the Schedule was drawn up (i.e. 1907), Fung Yam Fat was not a resident of the Village, but of Sha Tin Tau.  While it might have been open to the RO to conclude from the fact that Fung Yam Fat was the owner of a House Lot in the Village as at 1907 that he was also the owner of the Lot in 1898, and perhaps also that, at some point prior to 1907, Fung Yam Fat, as the owner of the Lot, had lived there, there was nothing at all to show when, before 1907, Fung Yam Fat had moved from the Village to Sha Tin Tau and, in particular, whether the date of his having done so was before 1898 (in which case he would not have inhabited the Village as at 1898 and would not have been an indigenous inhabitant of it) or after 1898 (in which case he would have been an indigenous inhabitant of the Village).  Thus, the entry in the Schedule to the Block Crown Lease was not, in my view, evidence that tended logically to show that Fung Yam Fat was a resident of the Village in 1898.

23.  With respect, I am unable to agree with Lam J’s view (expressed in paragraph 28 of his judgment) that it was open to the RO to conclude that it was more probable than not that Fung Yam Fat inhabited the Village as at 1898 on the basis that it was unlikely that, in the circumstances prevailing in 1898, someone (with a different surname from the other inhabitants) would have owned property at the Village without living there.  It was accepted by the Interested Parties that Fung Yam Fat had moved away from the Village at some point prior to 1907, but there was nothing to show when this happened, other than a representation to this effect (unsupported by any material) by or on behalf of the Interested Parties.

24.  Further, insofar as Lam J considered that the RO must have accepted the evidence in the statement of Fung Tak Keung that the Fungs had relocated from the Village after 1898 (see paragraph 29 of his judgment), I must respectfully disagree.  There was nothing in that statement to show when Fung Yam Fat, on whom the RO had focused, moved away from the Village, and the RO did not purport to base his decision on Fung Hing having been an inhabitant of the Village as at 1898 (a conclusion which would have required the RO to have resolved the question of what Fung Hing’s date of birth was). 

25.  Mr Dykes submitted that where there were two possible versions of fact before the RO (in effect that either Fung Yam Fat was a resident of the Village as at 1898, or that he was not), the RO was entitled to choose whichever of the two versions seemed to him to be more probable.  I am unable to agree with this submission.  In such a case, where both possibilities exist, and, as here, where there is nothing to show which is the more probable of the two, it does not seem to me that it is open to an RO to, in effect, make a guess as to which of the two possibilities represented the true position.  In such a situation, the Interested Parties cannot, in my view, be regarded as having discharged the initial evidential burden that lies upon them.

26.  The conclusion that the material put before the RO could not support the finding that he made, that Fung Yam Fat was an inhabitant of the Village in 1898, means, in my view, that the finding was not one which was reasonably open to him, and that it was one which was beyond the range of reasonable findings which he could make.  It was, therefore, unreasonable in the Wednesbury sense.

27.  The position is the same in relation to the finding that, on the basis of the crown rent receipts produced, the Interested Parties were descendants of Fung Yam Fat.  Given that the crown rent receipts were not in fact produced by any of the Interested Parties, but by a person who, although related, was an indigenous inhabitant of another village (i.e. Sha Tin Tau), they do not assist in showing that the Interested Parties were descendants of Fung Yam Fat.  The suggestion on behalf of the Interested Parties that they (or their forebears) might have left the payment of rent to relatives who lived closer to the Village than they did is, with respect, no better than speculation.  I am therefore of the view that in reaching the conclusion as to the relationship of the Interested Parties to Fung Yam Fat on the basis of these receipts, the RO also came to a finding which was beyond the range of reasonableness.

28.  In coming to these conclusions, I do not overlook the difficulties of obtaining evidence or material to establish residence of a particular person in a particular village in 1898, a time when there were limited or no official records, and a time so far in the past that it is unrealistic to expect there to be direct evidence of the position.  However, it seems to me that the matters relied on by the RO for his findings in this case were not, for the reasons which I have explained above, such as could support the findings which he made.

29.  In the course of his submissions, Mr Tong suggested that it should never be sufficient for a person in the position of the Interested Parties to rely solely on the statement or assertion of someone interested in the matter in support of an application to be included on the electoral register in respect of IIR elections for an indigenous village, and that in every case, some corroborative evidence (even if not subject to the strict rules of evidence) should be required.  He suggested that this was appropriate given the importance of the proper maintenance of the electoral register in order to ensure a fair election, as the result of insufficient measures being taken to guard against the inclusion of ineligible electors being included on the register and being entitled thereby to vote would be to compromise the integrity of the elections.  However, it is, as Lam J pointed out in paragraph 17 of his judgment, equally unsatisfactory for an eligible person to be wrongly denied the opportunity to vote.  Having regard to the difficulties of obtaining direct or concrete evidence in relation to the questions which need to be determined in the context of compiling the electoral register for IIR elections, I would not accede to this suggestion, and would say only that whether any, and if so what, weight should be given to such a statement must be a matter for the ERO or RO considering it, having regard to the quality of the statement and all the other surrounding circumstances of the case before them.

30.  Thus, for the reasons which I have explained above, it seems to me that the decisions of the RO must be quashed.  Given the reasoning adopted by the RO, it is not, in my view, possible to say what the outcome of the appeal and review would have been had the errors which I have identified above not been made.

31.  I do not think that the fact that the election has been held, with the Applicant being elected to the position of IIR, or the fact that the register is to be compiled each year, renders it appropriate for the court to exercise its discretion against judicially reviewing the decisions of the RO here.  If the decision is not quashed, it might well be difficult for a person in the position of the Applicant to challenge the register compiled in future years, particularly given that section 17(3) of the Ordinance provides for the provisional register to be prepared each year on the basis of the preceding year’s register.  On the other hand, as Mr Tong accepted, as the Applicant is not, in this appeal, seeking the declaration sought below to the effect that the Interested Parties are not indigenous inhabitants of the Village within the meaning of the Ordinance, it will be open to the Interested Parties to seek to be included on the register of electors in future years, possibly relying on additional evidence to that which they have put forward so far.

32.  I would therefore order that the judgment of Lam J be set aside, and quash both the determination of the RO dated 17 September 2010 dismissing the appeal of the Applicant against the ERO’s decision to include the Interested Parties in the provisional register of electors for the Village, and his decision on review dated 29 September 2010 affirming that determination.  I would also quash the consequent decision of the ERO to include the Interested Parties in the final register of electors for the Village that was gazetted on 15 December 2010.

33.  So far as costs are concerned, I would make an order nisi that the Interested Parties should pay the Applicant’s costs of this appeal and of the proceedings in the court below, in each case with a certificate for two counsel.

Hon Fok JA:

34.  Accordingly, for the above reasons, the appeal is allowed and we make the orders as set out in paragraphs 32 and 33 above.