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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Introduction

1. The election of a village representative for Po Toi O Village in the New Territories is due to take place next month. The Applicant, Chan Wah, applied to be registered as a voter in that election. That application was refused on the ground that he was not an indigenous villager of Po Toi O Village. Mr. Chan contends that the refusal to register him as a voter in the election on that ground was unlawful. He now applies for judicial review.

Mr. Chan's original case

2. The Notice of Application for leave to apply for judicial review set out how Mr. Chan's case was originally put. His case was simple. The election was governed by rules which provided that a person was eligible to vote in the election if he or she was an indigenous villager, or if he or she was a Hong Kong permanent resident aged 18 or over who had lived in the village for at least 7 years. Mr. Chan was a Hong Kong permanent resident aged 66 who had lived in Po Toi O Village all his life. Accordingly, the fact that he was not an indigenous villager should not have prevented him from being registered as a voter in the election. This reasoning was said to apply to another 291 people who had been denied the right to vote in the election. If they were permitted to vote in the election, that would increase the number of voters from 530 to 822.

The rules governing the election

3. Evidence which has now been filed on behalf of the Respondents, namely the Hang Hau Rural Committee ("the Rural Committee") and the Sai Kung District Office ("the District Office"), is to the effect that the provisions in the rules relating to eligibility to vote in the election have been superseded. The evidence is that there are no legislative provisions or mandatory rules governing the election of village representatives. Accordingly, the Rural Committee promulgated a set of rules to govern the 1998 elections of village representatives. However, the Rural Committee recognised that villagers should be entitled to adapt those rules so as to reflect the particular traditions of each village. In particular, it was decided that it would be up to indigenous villagers to decide whether voting rights should be accorded to non-indigenous villagers. In Po Toi O Village, the indigenous villagers decided not to permit non-indigenous villagers to vote in the election. That decision was made by a committee representing the indigenous villagers. There is evidence that there was an exception to the rule that only indigenous villagers are entitled to vote in the election: non-indigenous women villagers who are married to indigenous villagers are entitled to vote.

4. That is the state of the evidence at present. If that remains the undisputed evidence, it means that Mr. Chan's case as originally put must fail. He cannot rely on the provisions as to eligibility contained in the rules promulgated by the Rural Committee. Those provisions were not to apply to Po Toi O Village. What prevents him from being registered as a voter in the election is the rule laid down by the committee representing the indigenous villagers that voters have to be indigenous villagers.

Mr. Chan's new case

5. That, no doubt, is why a wholly new case is now advanced on Mr. Chan's behalf. It is contained in proposed amendments to the Notice of Application. The decision challenged is still the decision not to register Mr. Chan as a voter in the election, but the grounds now contend that (a) the rule allowing only indigenous villagers to vote is unlawful because it is inconsistent with the Basic Law and the International Covenant on Civil and Political Rights as applied to Hong Kong, and (b) the exception to the rule relating to non-indigenous women villagers who are married to indigenous villagers contravenes the Sex Discrimination Ordinance (Cap. 480). Notice of Mr. Chan's intention to apply for these amendments, and to rely on further evidence relating to the legality of the exception to the rule, was only given to the Respondents on 20th January.

The attitude of the Respondents

6. Neither the Rural Committee nor the District Office wish to take an active part in these proceedings. That is understandable. On the current state of the evidence, the rule which is challenged is not one for which they are responsible. Although the election is conducted under the auspices of the Rural Committee, the rules relating to eligibility to vote which it recommended were not adopted by the indigenous villagers of Po Toi O Village. Accordingly, the Rural Committee is asking that it be deleted as a Respondent from these proceedings. The stance of the District Office is only slightly different. Although it provides administrative help for the election, it too had no role to play in determining who should be eligible to vote in it. It recognises that it has a role to play once the election has taken place. That is because the Secretary for Home Affairs is required by section 3(3)(a) of the Heung Yee Kuk Ordinance (Cap. 1097) to approve the appointment of a village representative before he or she takes up office. The Secretary for Home Affairs has delegated that task to District Officers. Accordingly, the stance which the District Office has decided to take is to remain in the proceedings but to adopt an entirely neutral stance.

The need to serve the proceedings on the indigenous villagers

7. In these circumstances, can this application for judicial review proceed today? I do not think that it can. The group of persons who would want to justify the rule which is being challenged are the indigenous villagers of Po Toi O Village. They must be given the opportunity to make representations if they want to. So far, the committee which represents them has not been served with any of the documents in the proceedings, and its members may not even know what it is now proposed to argue against the view taken by the indigenous villagers.

Conclusion

8. Accordingly, the hearing of the application must be adjourned to enable the indigenous villagers to take part in the proceedings through the committee which represents them if they want to. I propose to give Mr. Chan leave to amend the Notice of Application to enable the new points which are taken to be argued on his behalf. I shall hear representations as to such directions I should give for the service of these proceedings on the committee which represents the indigenous villagers, and on the directions I should give for the further conduct of these proceedings. Finally, the judgment which I delivered on 9th January explained why I was making an order which had the effect of postponing the election from 10th January. I shall want to hear

representations as to what should now happen to the election, bearing in mind that it is due to take place on 7th February.