CHAN WAI HONG v. THE REVISING OFFICER, MR SYMON WONG

HCAL 105/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 105 OF 2011

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J U D G M E N T

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A.   INTRODUCTION

1. This is the applicant’s judicial review against the respondent’s decision (“the Decision”) dated 30 September 2011. 

2. By way of the Decision, the respondent as the Revising Officer (“the RO”) dismissed the applicant’s appeals against the Electoral Registration Officer’s decision to include the 3^rd to 86^th Interested parties (the “84 Persons”) in the provisional register of electors for Luk Keng village, Chan Uk (“Luk Keng”).  The provisional register was published pursuant to the Village Representative Election Ordinance (Cap 576) (“the Ordinance”).

3. In this judicial review, the applicant asks for:

(1)  An Order of Certiorari to quash the Decision.

(2)  A Declaration that the 84 Persons are not indigenous inhabitants of Luk Keng within the meaning of the Ordinance.

B.  THE BACKGROUND

4. Under the Ordinance, amongst other things, only an indigenous inhabitant of an indigenous village (as identified therein) could be registered as an elector for the purpose of the village representative election of that village.

5. A person is an “indigenous inhabitant” of an indigenous village if (a) he was a resident at that village in 1898, or (b) he is a descendent through the male line of that person[1]. 

6. It is common ground that Luk Keng is an indigenous village under the Ordinance.  Thus, for the present purpose, only a person who is a descendent through the male line of a person who was a resident at Luk Keng in 1898 is eligible to be registered as an elector for the village representative election of Luk Keng.

7. Further, under the Ordinance:

(1)  The Electoral Registration Officer^[2] shall compile and publish:

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

(b)  A final register of electors for a village not later than 20 October in each year^[3].

(2)  A person who is dissatisfied with a decision of the Electoral Registration Officer made for the purposes of the Ordinance may appeal against that decision to a Revising Officer^[4].

8. In relation to the 84 Persons, notwithstanding the applicant’s objection, the Electoral Registration Officer decided to include them in the provisional register of electors for the next village representative election of Luk Keng.  The applicant objected on the contentions that the 84 Persons are not indigenous inhabitants of Luk Keng.

9. Dissatisfied with the Electoral Registration Officer’s said decision, the applicant appealed against it to the RO under VRE Appeal Nos 24-107 of 2011 (collectively “the VRE Appeals”).  The 84 Persons were joined as respondents in those appeals. 

10. The hearing of the appeals were conducted before the RO on 20 and 22 September 2011.  The parties were represented. At those hearings, the applicant did not challenge the 84 Persons’ position that they were all descendants of Chan Deen Seun Gong 陳殿相公, and that the latter were all descendants of Chan Man Tai Gong 陳萬泰公 (the son of 陳殿相公) and Chan Yam Chau Gong 陳任就公 or Chan Yam Tat Gong 陳任達公 (grandsons of Chan Man Tai Gong 陳萬泰公).

11. It was also undisputed that both Chan Deen Seun Gong 陳殿相公 and Chan Man Tai Gong 陳萬泰公 owned lands at Luk Keng.

12. On 22 September 2011, the RO dismissed the VRE Appeals and held that the 84 Persons should be registered in the list of electors of Luk Keng[5].

13. The applicant later applied to the RO to review his decision to dismiss the VRE Appeals. 

14. The hearing of the review was held on 30 September 2011, where the applicant adduced and relied on certain additional evidence.  One of this additional evidence was the complete Chan’s genealogy (“the Genealogy”), which was only partially submitted in the earlier appeals hearing. 

15. Based on this complete Genealogy, the applicant no longer maintained his original stance[6] that all the 84 Persons were descendants of either Chan Yam Chau Gong or of Chan Yam Tat Gong, as he did not now accept that 21 out of the 84 Persons who claimed themselves descendants of “叶薰” were descendants of Chan Yam Chau Gong.  This is because it was the applicant’s case that the said complete Genealogy did not record the existence of these 21 persons at all (as their names do not appear there), and this fact was not discovered at the appeals hearing.  For convenience, I would refer to these 21 persons in this judgment as “the 21 Persons”[7].

16. After the review hearing, the RO dismissed the review and maintained his earlier decision to dismiss the VRE Appeals, and concluded that the 84 Persons were indigenous inhabitants of Luk Keng as defined under the Ordinance[8].  This is the Decision which is now under challenge.

17. On 23 December 2011, the applicant applied for leave to judicial review the Decision.  Leave was granted by this court on 5 March 2012 after hearing.  The Court further directed that the Electoral Affairs Commission, the Director of Home Affairs and the 84 Persons be joined as the 1^st to 86^th Interested Parties.

18. The RO, the Electoral Affairs Commission and the Director of Home Affairs all subsequently indicated to the court that they would take a neutral stance in this application, and have since not taken any steps in it.

19. In relation to the 84 Persons, only the 53^rd Interested Party appeared at the hearing of the judicial review through counsel to oppose the application[9]. 

C.   THIS JUDICIAL REVIEW

20. The applicant originally set out six grounds in the Form 86 in support of the judicial review.  At the hearing, Ms Cheung for the applicant confirmed to the court that she would only pursue the 4^th and 5^th grounds to support the application.

21. I would therefore only deal with these two grounds of judicial review as follows.

C1.   The RO had failed to provide any or any adequate reasons in the Decision

22. This ground arises in the following way.

23. It was the applicant’s main contentions at both the original and review hearings before the RO that the 84 Persons were descendants from ancestors residing at Lo Fong (“羅芳”) village instead of Luk Keng in 1898.  The applicant relied mainly on the Genealogy adduced before the RO to support such contentions.  In particular, it is the applicant’s case that there are references in the Genealogy relating to some of the ancestors relied on by the 84 Persons which show that they had moved to and settled at Lo Fong long before and also in 1898[10]. This was further advanced by the applicant at the review hearing with the additional evidence.

24. In relation this, the RO said this in his Decision[11]:

“ 一眾人等，都係喺羅芳曾經擁有過土地，故此反對人嘅立場就係指，被反對人士未能達到第576章所指嘅原居民法律定義。法庭並不質疑被反對人士嘅部份祖先，喺1898年嗰陣時，早已經從鹿頸遷移去羅芳，但係同樣地，法庭亦都不能夠否定，喺1898年嗰一剎那，嗰一年，仍然有被反對人士嘅部份祖先，係喺鹿頸度擁有土地。

講到擁有土地，法庭用上一次，即係22號當日嘅推論，即係指由於當時交通並不發達，當某啲人擁有土地喺某啲地方嘅時間，個推論就係嗰啲人就係喺該地居住。好，返番去今次，喺1898年，喺鹿頸擁有土地嘅人士，包括譬如上次提及過嘅陳殿相、陳萬泰祖嘅後人，順便亦都一提嘅就係，我並冇忽略到，例如陳任就祖，佢遠遠早於1898年之前，即係1817年，或者1818年，已經係逝世，呢啲重點，法庭係並冇忽略到。

我亦都有充分考慮，反對人另外一個論點，即係包括舉個例，某啲被反對人士嘅祖先，喺1898年嗰陣時，已經集散於鹿頸以外其他嘅地方居住，呢個觀點。但係一如剛才法庭所講，法庭既然不能夠否定被反對人士嘅部份祖先，喺1898年之際，既於鹿頸擁有土地，亦於鹿頸居住，因此被反對人士--法庭嘅裁定就係，仍然符合原居民嘅法律定義。” (emphasis added)

25. The applicant now contends that this part of the Decision shows that the RO accepted that “some” ancestors of the 84 Persons had already resided at Lo Fong in 1898 (see the highlighted part of the Decision above).  In the premises, the RO should have further identified such ancestors and ruled that the descendants thereof are not indigenous inhabitants of Luk Keng.  However, he did not to do so.  Instead, the RO went on to conclude (without any further adequate explanations, the applicant further contends) that all the 84 Persons were indigenous inhabitants of Luk Keng (which by definition means that their direct ancestors resided at Luk Keng in 1898).  One is thus unable to discern the rationale or reasoning behind such conclusion.

26. In the premises, the applicant says the Decision is challengeable by way of judicial review as the RO had failed to give any or any adequate reasons to explain his decision.

27. I think the applicant is right.  I will explain why.

28. There is no dispute that the RO in determining the VRE Appeals and the review has to give adequate and intelligible reasons for his decision, and the failure to do so could amount to a valid ground in judicial review to quash the Decision[12].

29. On the face of the Decision as quoted above, it appears that the RO did accept from the evidence that as at 1898, “some” of the ancestors of the 84 Persons had already moved to Lo Fong.  This part of the decision when read objectively could well mean that some of the 84 Persons’ ancestors had moved to Lo Fong in 1898.  If that was the case, then those persons of the 84 Persons cannot fall within the statutory definition of indigenous inhabitants of Luk Keng. 

30. Notwithstanding this, the RO still concluded and held in the Decision that all the 84 Persons were indigenous inhabitants of Luk Keng.  Although the RO further said in this part of the Decision that as at 1898, some of the ancestors of the 84 Persons also owned lands in Luk Keng[13], this in my view per se (and without further reasons) does not provide any intelligible explanation as to why it has then made all the 84 Persons indigenous inhabitants of Luk Keng.  The mere fact that someone owns a piece of land at a place per se does not necessarily show that that person is residing at that place.

31. In the circumstances, without any further reasons or explanations, it is difficult for a reader of the Decision to understand objectively why the RO had come to the conclusion that all the 84 Persons were indigenous inhabitants of Luk Keng, after apparently accepting that some of the 84 Persons’ ancestors had moved to Lo Fong in 1898.  This is particularly so as without further explanations:

(1)  Simply by reading this part of the decision, it is unclear as to whether those ancestors (部份祖先) who had already moved to Lo Fong in 1898 and referred to by the RO were the same some ancestors (部份祖先) identified by him to have owned land in Luk Keng.

(2)  If these some ancestors (部份祖先) were the same persons, it is unclear as to why and how the facts that (a) they had moved to Lo Fong in 1898, and (b) they also owned land in Luk Keng could interact with each other to result in the conclusion that these ancestors in fact resided in Luk Keng in 1898, so as to make their descendants indigenous inhabitants of Luk Keng.

(3)  If these some ancestors (部份祖先) were different persons, it is similarly unclear as to why the fact that some ancestors (部份祖先) also owned land in Luk Keng is relevant to the determination of whether the descendants of some other ancestors (部份祖先) who had moved to Lo Fong in 1898 indigenous inhabitants of Luk Keng.

32. Mr Wong for the 53^rd Interested Party contends that the “部份祖先” referred to by the RO who had moved to Lo Fong in 1898 were intended to refer to only those ancestors who were not the direct ancestors giving rise to the descending line to the 84 Persons.  The words “部份” are referring to those ancestors other than the direct ancestors giving rise to the descending lines of the 84 Persons. 

33. Mr Wong further says this is borne out by the words in the part of the Genealogy relied on by the applicant.  These words read “以上是伯德祖部份後裔俱住羅芳”[14]. This phrase relates to the descendancy of the 19^th generation which straddles the years 1875 to 1936, and is thus relevant for determining the likely residence of those ancestors as at 1898.  “伯德祖” is one of the direct ancestors giving rise to the descending line of some of the 84 Persons.  Mr Wong therefore submits that the words “伯德祖部份後裔俱住羅芳” clearly show and refer to the fact that only some of the descendants from “伯德祖”had moved to Lo Fong, and thus the RO’s reference to “部份祖先” in his Decision should clearly mean only those ancestors other than the direct ancestors giving rise to the descending lines of the 84 Persons.

34. I do not agree:

(1)   In my view, although these words in the Genealogy may have the meaning as submitted by Mr Wong, they may also equally carry the meaning the other way round, as there is nothing to show that the “部份後裔” who had moved to Lo Fong refer to those who did not become the direct ancestors giving the lineage to some of the 84 Persons. These words are thus equivocal as to either of these meanings.

(2)  Moreover, the RO has not indicated in the Decision that he relied on these particular words of the Genealogy to explain why he came to the otherwise conflicting conclusions in the Decision, and (more importantly) why by relying on these words, he could come to the view that these “部份後裔” were not the direct ancestors giving the lineage to some of the 84 Persons.

(3)   In the premises, Mr Wong’s above submissions are no more than providing a speculative explanation for the RO’s conclusion in the Decision.  They therefore further underline the lack of adequate reasoning of the Decision.

35. For these reasons, I accept the applicant’s submissions that the RO has failed to give any or any adequate reasons to explain and support the conclusion in the Decision.  The Decision should thus be quashed and the VRE Appeals be remitted to the same RO for reconsideration.

C2.   The RO did not consider or resolve the issue of whether the 21 Persons are descendants of Chan Yam Chau Gong (陳任就公) at all

36. This ground is premised on the applicant’s contention at the review hearing on 30 September 2011 that the 21 Persons could not be descendants of Chan Yam Chau Gong, because the complete Genealogy did not record the 21 Persons’ names.  It is the applicant’s position that this fact was not discovered at the hearing of 20 and 22 September 2011.

37. The 84 Persons did not adduce any further evidence to respond to the applicant’s additional evidence at the review hearing, although their legal representative had made submissions against the reliability of the applicant’s new evidence and his contentions regarding the 21 Persons.

38. This evidence and the submissions that the 21 Persons cannot be the descendants of Chan Yam Chau Gong were therefore squarely put before the RO at the review hearing.  Such evidence in my view is clearly a relevant material that the RO should take into account in coming to the Decision. However, he has not dealt with this in the Decision.  Thus, it is unclear as to whether, in reaching his conclusion, the RO had taken this evidence and submissions into account but rejected them, or whether he had failed to take them into account at all.  If it is the former, the Decision is again tainted with the failure to give reasons as to why he rejected this evidence.  If it is the latter, the Decision is also tainted by an error of law in that the RO had failed to take into account of a relevant material.

39. In the premises, the Decision should also be quashed on this ground.

D.   CONCLUSION

40. For the above reasons, the applicant is successful in this application.  I would quash the Decision and direct that the VRE Appeals be remitted back to the same RO for reconsideration in light of my above reasons in quashing the Decision.

41. I refuse to grant the declaration as sought by the applicant. Whether the 84 Persons or any of them are indigenous inhabitants of Luk Keng is essentially a question of fact in light of the dispute.  This court sitting in its supervisory role in judicial review generally would and should not make any determination on the underlying disputed facts.  Given my reasons for quashing the Decision, this case is clearly not one which the court should make such a declaration in judicial review.

42. I further make an order nisi that the 53^rd Interested Party should pay the applicant the costs of this application, to be taxed if not agreed.  Unless any of the parties applies to vary it by summons, this order shall become absolute 14 days from today.