CHAN WAH v. HANG HAU RURAL COMMITTEE AND ANOTHER

1998 HCAL No. 112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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J U D G M E N T

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The current proceedings

1. The election of a village representative for Po Toi O Village in the New Territories is due to take place tomorrow. The applicant, Chan Wah, applied to be registered as a voter in the election. That application was refused. Mr. Chan contends that the refusal to register him as a voter in the election contravened the election's rules. His case was sufficiently arguable to have justified granting him leave last Monday to apply for judicial review of the refusal to register him as a voter in the election.

The application for an injunction

2. Mr. Chan is now applying for an injunction which has the effect of preventing the election from taking place until after the question of whether he should be permitted to vote in it has been determined. I was initially reluctant to go along with that. I assumed that if it was found that Mr. Chan should have been permitted to vote in the election, it would then be open to him to challenge the election on the ground that he was wrongfully refused permission to vote in it. If his vote would have proved decisive, I assumed that the challenge to the election would succeed, and there would have to be a fresh election in which Mr. Chan would be permitted to vote. I did not think that it would be right to stop the election going ahead now, simply because Mr. Chan may have been wrongfully refused to be a voter in it, when it may have turned out that his vote would not have been decisive at all.

3. However, a further affirmation filed yesterday was to the effect that the principal ground on which Mr. Chan complains that he should have been permitted to vote in the election also applies to another 291 persons who have been denied the right to vote in the election as well. That will increase the number of eligible voters from 530 to 822. The votes of such a large number of people could well be decisive in the election. In addition, I was also told yesterday that the term of office of the present village representative will not expire until 31st March. Provided that the election takes place before then, the village will not be denied a representative if the election is postponed for a few weeks.

4. Moreover, I am now more than a little sceptical as to whether it will be open to Mr. Chan to challenge the election if it takes place tomorrow. The election petition procedure provided for by the Electoral Provisions Ordinance (Cap. 367) may not apply to this election. Indeed, my annotated version of the Laws of Hong Kong tells me that the Electoral Provisions Ordinance was not adopted by the Standing Committee of the National People's Congress as one of the laws of the Hong Kong Special Administrative Region. It may therefore be that the only way in which a successful candidate in tomorrow's election can be prevented from becoming the village representative is by persuading the Secretary for Home Affairs not to approve his appointment under section 3(3)(a) of the Heung Yee Kuk Ordinance (Cap. 1097). However, there is no certainty that the Secretary for Home Affairs would refuse to approve his appointment simply on the ground that not all the eligible voters had been permitted to vote in the election. It may be that the approval of the appointment in those circumstances would itself be subject to judicial review, but there is no certainty that the court would quash that approval. In short, there is uncertainty as to whether Mr. Chan could do anything to set aside the election of whoever is elected tomorrow.

The difficulties involved

5. These considerations have led me to conclude that the election should not take place tomorrow, provided that delaying the election does not prevent the successful candidate from taking up office by 31st March when the tenure of the incumbent expires. However, that is not quite as straightforward as it sounds. I say that for two reasons. First, the elected village representative will be eligible to stand for election to the Executive Committee of the Hang Hau Rural Committee of the Heung Yee Kuk. The elections are due to take place on 2nd March, and the last date for nominations is 15th February. If those dates are to be maintained, the election of a village representative for Po Toi O Village has to have taken place a few days before 15th February in order to give the successful candidate a few days to decide whether to stand for election to the Executive Committee. That would mean that this application for judicial review would have to have been heard and determined by at least a few days before that to enable arrangements to be made for the election to take place a few days before 15th February with all eligible voters able to vote in it. Since the election is presently due to take place tomorrow, a Sunday, I assume that Sunday is regarded as the most appropriate day of the week for the election to take place. An election on Sunday, 7th February, would therefore be necessary to give the successful candidate time to decide whether to stand for election to the Executive Committee. That would mean that the application for judicial review would have to have been heard and determined by 3rd February at the latest.

6. Secondly, the rules for the election laid down by the Hang Hau Rural Committee provide that a provisional list of eligible voters must be promulgated 60 days before the election. The reason for that is to enable objections to any voter on that list to be lodged and determined before the final list of eligible voters is promulgated 40 days before the election. Against that background, it is necessary to bear in mind the basis on which Mr. Chan was not registered as a voter, and the principal basis on which he contends that he should have been. He was not registered as a voter because he is not an indigenous villager. He contends, as do the 291 other villagers, that a Hong Kong permanent resident aged 18 or over who has lived in the village for at least 7 years is eligible to vote in the election, even if not an indigenous villager. If that is correct, he and the other 291 villagers will be eligible to vote in the election, unless they are in fact disenfranchised by status, age or non-residence. It follows that if the election is postponed to, say, 7th February, there must be built into the procedures a mechanism by which objections to potentially eligible voters on the ground of status, age or non-residence can be lodged and determined.

7. In my judgment, neither of these two difficulties are insuperable. It is possible for the application for judicial review to be heard and determined by 3rd February. The directions which could be made to give effect to the need for judgment to have been given by 3rd February could be as follows:

(i) The Originating Motion be filed by 4:30 p.m. on 11th January.

(ii) Such evidence as the Respondents wish to rely upon be served and filed in court by 4:30 p.m. on 15th January.

(iii) Such evidence as Mr. Chan wishes to rely upon in reply be served and filed in court by 4:30 p.m. on 20th January.

(iv) The hearing of the application for judicial review be fixed for 25th January, with a time estimate of one day.

8. As for the mechanism for objections to be lodged and determined, a new provisional list of eligible voters can be prepared and promulgated in the next few days. That could be promulgated without prejudice to any contention that the current final list of eligible voters is accurate and complete. That new provisional list would contain the names of Mr. Chan and the other 291 villagers said to be in the same position as him. Objections could then be made to Mr. Chan and the other 291 villagers if any of them are said not to be Hong Kong permanent residents or not to have attained the age of 18 or not to have lived in the village for at least 7 years. Those objections could be determined in time for a final list of eligible voters to be prepared in time for an election on, say, 7th February. If the application for judicial review succeeds, that final list will include those persons who following such objections are accepted to be Hong Kong permanent residents aged 18 or over who have lived in the village for at least 7 years. If the application for judicial review fails, that final list will not include such persons. I appreciate that this new provisional list of eligible voters and any new final list would not have been promulgated in accordance with the time-table envisaged by the rules, but the rules are flexible because the rules themselves provide that the time-table is to be followed only "as far as possible".

The attitude of the Respondents

9. The 1st Respondent to this application for judicial review is the Hang Hau Rural Committee, which promulgated the election rules and under whose auspices the election takes place. The 2nd Respondent is the Sai Kung District Office, which provides administrative help for the election. Mr. Johnny Mok for the 2nd Respondent supports Mr. Chan's applicant for an injunction which has the effect of postponing the election for the time being. He is content with the arrangements which I have described which draw heavily on his proposals, as indeed is Mr. Stephen Yam for Mr. Chan. The only dissenting voice is that of Mr. Shing Hon Keung, the Chairman of the Hang Hau Rural Committee. Understandably, he does not relish the prospect of the administrative inconvenience involved in unscrambling tomorrow's election, and in determining any objections based on the status, age and non-residence of Mr. Chan and the other 291 villagers - the consideration of which will have been unnecessary if the application for judicial review fails. But I have concluded that these disadvantages are insignificant when compared with the injustice which would be done to Mr. Chan and the other 291 villagers if the election went ahead tomorrow, but if there was no sure mechanism by which a fresh election could take place, if it turns out that a large number of eligible voters whose votes would have been decisive were wrongly disenfranchised.

Conclusion

10. For these reasons, therefore, I propose to make an order which has the effect of postponing the election for the time being, and I will hear representations as to the precise terms of the order which I should make.