LAI TAK SHING v. DIRECTOR OF HOME AFFAIRS

HCAL 82/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO. 82 OF 2003

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J U D G M E N T

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Introduction

1.  This application for judicial review seeks to challenge the manner in which the Secretary for Home Affairs (“the Secy”) exercised his power conferred by s. 67(1), Village Representative Election Ordinance (Cap. 576) to amend Schedule 2 of Cap. 576.  In terms of the facts of this application, the applicant contends the Secy is obliged under Cap. 576 to amend that schedule by adding “Tsing Yi Hui” (青衣墟) to the list of “Indigenous Villages” therein.  This contention is disputed by the other parties to this application.  Leave to apply for judicial review was given on 22 August 2003.

Background Facts

2.  The background facts are largely undisputed.

3.  The applicant is an indigenous inhabitant, that is, he is a descendant through the male line of a resident of an indigenous village who lived there in 1898.  Before 4 November 2002, he (and his father) was recognised by the Lands Department to be an indigenous inhabitant of Tsing Yi.  In a letter dated 4 November 2002, the Lands Department decided that the applicant (and his father) was an indigenous inhabitant of Ma Wan.

4.  Cap. 576 was enacted in 2003.  Its long title sets out the purpose of the enactment.  In the context of this application, the relevant part is:-

“to provide for the establishment of the office[s] of resident representative for an Existing Village … of indigenous inhabitant representative for an Indigenous Village or a Composite Indigenous Village; to provide for the elections of Resident Representatives and Indigenous Inhabitant Representatives … ”.

5.  Phrases such as “Indigenous Village”, “Existing Village” and “Composite Indigenous Village” are defined in Cap. 576.  In short, elections of village representatives are to be held only for those “Villages”.

6.  Schedule 1 thereof is a list of “Existing Villages” and Schedule 2 thereof is a list of “Indigenous Villages” (collectively “the said schedules”).  “Tsing Yi Hui” is not included in the said schedules.

7.  Between January and June 2003, there was correspondence passing between the applicant and the Home Affairs Department about adding “Tsing Yi Hui” to the said schedules as well as the indigenous inhabitant status of the applicant and his father.

8.  In about March 2003, the applicant applied to register as an elector of “Tsing Yi Hui”.  His application was refused in April 2003 on the ground that “Tsing Yi Hui” was not included in Schedule 2, Cap. 576.

9.  The decision under challenge in this application was the one contained in a letter dated 18 July 2003 from the Secy where he informed the applicant “Tsing Yi Hui” was not eligible to be included in the said schedules.

The Applicant’s Case

10.  The applicant contends that the Secy is obliged to exercise his power of amendment in his favour because whether “Tsing Yi Hui” was an indigenous village is a question of fact.  Since, so the applicant argues, that fact is indisputable, the Secy should exercise his power accordingly.  Instead, the Secy erred in failing to do so and in taking into consideration irrelevant matters, namely, the refusal of the Tsing Yi Rural Committee (“the Committee”) to recognise “Tsing Yi Hui” as an indigenous village and that there has not been any village election there from 1950 onwards.

11.  As explained in para. 52 to 53 below, there may be a further or alternative complaint that the Secy has wrongfully delegated his power under s. 67(1), Cap. 576 to the Committee by allowing the Committee in effect to determine the status of “Tsing Yi Hui”.

12.  As will be set out below, both the respondent and the Committee contend that the Secy’s decision is correct mainly because “Tsing Yi Hui” was not an indigenous village.  As regards this contention, the applicant says there is no need for him to prove that matter conclusively.  All he needs to do is to satisfy the court it is proper for the matter to be investigated by the Secy.  As a result, he no longer pursues the relief sought at para. 3 of this application (under the heading “Relief Sought”) but merely seeks an order in terms of para. 1 and 2 thereof.

The Respondent’s Case

13.  The respondent argues that the mischief of Cap. 576 must be looked at, and, if that is taken into consideration, the decision of 18 July 2003 was correctly made.  This is because Cap. 576 was enacted to redress the matters set out in the Court of Final Appeal’s decision in two appeals.  I understand that to refer to the decision in Secretary for Justice and others v. Chan Wah and others [2000] 4 HKC 428.  Chan Wah was a decision about the need to conduct the election of village representatives in an open, fair and honest manner and in a way consistent with the Hong Kong Bill of Rights Ordinance (Cap. 383) and the Sex Discrimination Ordinance (Cap. 480).

14.  In any event, the applicant has totally failed to prove that “Tsing Yi Hui” was an indigenous village.

The Tsing Yi Rural Committee’s Stance

15.  The Committee asks by way of summons (taken out on 13 July 2004) to be joined as a proper party to be heard herein.  There is power for such joinder under RHC Ord. 53 r. 9(1): Hong Kong Civil Procedure 2004, para. 53/14/57.

16.  The joinder application was made on several bases.  Originally, the Committee sought to be joined in order to oppose the part of this application which asked for a declaration that the applicant is an indigenous inhabitant of “Tsing Yi Hui” within the meaning of s. 2, Cap. 576.  As stated above (at para. 12), the applicant no longer pursues that relief.

17.  Despite that change, the Committee still wants to be heard about the correctness of the Secy’s decision.  This is because, first, the Committee has been the body which the Government has consulted regarding village representative election matters.  Also, the Committee will be affected by the outcome of this application because, if the applicant is successful, “Tsing Yi Hui” village representative(s) will become member(s) of the Committee.

18.  The joinder application was unopposed by any of the parties herein.  I agree it is appropriate for the Committee to be heard as a proper party in this application.

19.  The Committee supports the respondent’s case as regards “Tsing Yi Hui” not being an indigenous village.  Further, it contends that the applicant is not an indigenous villager of Tsing Yi District.

Issue 1: Was “Tsing Yi Hui” an Indigenous Village?

20.  This is essentially a factual issue.  I note the applicant’s argument set out above ( at para. 12) to the effect that if I find the matter to be arguable, it should be sent back to the Secy for consideration.

(a)     Relevant Factual Materials

21.  The applicant relies on a document headed “List of Villages recorded in the Block Lease — Kwai Tsing District” (在集體契約內登記之鄉村名册 — 葵青區) (“the 1991 List”).  The following particulars are relevant:-

TSING YI TOWN 青衣墟

TSING YI 青衣

Old market town, known as TSING YI in BL, resited in 87 & 90 to FUNG SHUN WO VILLAGE RESITE 舊墟鎮，集體契約中稱作青衣，１９８７年與９０年搬村於楓樹窩村

22.  The applicant also relies on the minutes of a special meeting of the Committee on 16 August 2002 (“2002 meeting of the Committee”).  The 2002 meeting of the Committee was held for discussing a request to “reinstate” the village representative of the indigenous inhabitants of “Tsing Yi Hui”.  During that meeting, Mr Lau Wong Fat (劉皇發) (chairman of the “Heung Yee Kuk”) was recorded as having said:-

“我在鄉議局工作有廿多年，亦是在鄉村中長大。關於９１年編的鄉村名册，事出中、英談判基本法直至落實，有關基本法第四十條的權利，怎樣令到“四十條”內，居住在新界的居民享受到權利。到９１年，我們要求政府將鄉村和村民辨別，那條鄉村是原居民村？ …

確認原居民村的工作較容易處理，因在１８９８年，英國向中國租借新界時 … 已將原居民村落的位置從空中拍攝下，又在地圖上有屋位的框圈出，我們便可從地圖上可輕易找出原居民村。到１９９１年編製時，我們便依據地圖定出的村落位置，再翻查１９００年，新界租予英國後，把土地由紅契變為集體官批 … 政府須要進行登記，確認業權擁有人 … 登記在集體官批 (Block Lease) 內作為一個標準，從而引證 … 村的身份。大家同意這方針後，便製定了新界原居民村名錄名册，作為政府的一個指引 …

凡有人士提出認為是原居民村，政府便會依據名册翻查，又會在田土廳翻查集體官批，有該村的村名、地段號碼等，如確定該村為原居民村，加上該編號已在１８９８年之前的地段，便享有基本法第４０條 … [的權利] … ” (emphasis supplied).

Article 40 of the Basic Law is about the protection of the lawful traditional rights and interests of the indigenous inhabitants of the "New Territories".

23.  An executive member of the “Heung Yee Kuk” was recorded as having also said during the 2002 meeting of the Committee:-

“… 在座大家不會反對，在１９９１年新界鄉議局原有原居民村名册內有記載的就是原居民村 …. ”.

The reference therein to “the list of indigenous villages” compiled in 1991 was a reference to the 1991 List.

24.  Reliance is also placed on the preface of Mr Lau Wong Fat to the version of the 1991 List reproduced by the “Heung Yee Kuk”.   He said (among other things) a committee has been checking and reviewing the 1991 List during the 3 years since its publication.  That committee consisted of representatives from the “Heung Yee Kuk” and the Lands Department.

25.  Further, the applicant relies on written confirmations of Mr Chan Tin Sung (陳天送) respectively dated 8 February 1988 and 17 October 1998 of his indigenous inhabitant status.

26.  Finally, the applicant relies on the statement of the Deputy Secretary for Home Affairs made during the meeting of the Working Group on Village Representative Election (on 4 June 2002):-

“[大埔鄉事委員會主席]張學明主席表示，方案內尚有數點內容，他擔心因理解不同而產生誤會，因此提出來，請余副局長作出確認。首先是將會舉行原居民代表選舉的鄉村，是根據１９９２年鄉議局與規劃地政局共同制訂的認可鄉村名册作準，余副局長表示正確” (emphasis supplied).

The applicant says this shows the Government regarded the 1991 List as conclusive.

27.  On the other hand, the respondent relies on the affirmation of Mr Chow Shou Shun (District Officer, Kwai Tsing).  Mr Chow again refers to the 2002 meeting of the Committee where several members of the Committee said the following:-

“… 青衣墟是否原居民村？… 我曾徵詢過三位曾擔任青衣鄉事委員會主席的意見及過往資料。三位前任主席分別是：陳世龍先生(93歲)、鄧立泰先生(87歲) 、陳天送先生。陳世龍先生在任主席年份始於1956年，當年正是製定鄉村名册時期，將青衣大街改稱青衣墟，該時期涉及搬村，而陳乾德先生也是該搬村(青衣街)管理委員會委員之一，請陳乾德先生簡述”;

“青衣墟前稱青衣大街，所有門牌均以「青衣大街x號」編定便以郵遞。青衣墟此名的來歷，乃當時搬遷青衣大街時，為方便統稱，因此組成了“青衣墟搬村委員會”。何解青衣墟成為原居民村落？昔日居住該地帶的居民有水上人、戰前居民，亦有原居民擁有物業，由於人流暢旺，原居民都喜歡於此從商開店舖。到後期遷入現址，建牌樓稱叫青衣墟，這是我所知的實情” (陳乾德); 

“多謝陳乾德先生。陳世龍先生在任青衣鄉事委員會主席期間，以及在青衣大街居住過，我請教陳先生，青衣大街是否一個原著民村落？” (主席);

“(由陳天送先生以客家話翻釋問題及轉述陳世龍先生的話，稱它不是村落，是街名。)”;

“… 我約在十八、九歲時，該處只有幾間商店經營生意,商號有：同利、三合、天祥等，我家族亦在此營商。當時青衣大街之稱仍未有，我們通常叫去舖頭（商店），後來，入住的居民漸多，加上多了小販擺賣，到了1959年政府有所管制，於是便出現了臨時街市，自此人人稱該處叫青衣大街’ (陳世龍);

“… 在1987年，青衣大街受到政府發展進行大清拆，我正擔任鄉事會主席，我全心全力幫助鄉民爭取補償，當時也盡力協助黎志謀先生向政府爭取。在英國治港時期，地政署曾查核他的身份，都不作承認，故此他不能以原居民的補償方法。但到1999年，政府突然間改變，還核實他是原居民。為何前朝政府下了不少工夫都不能確立身份，甚至我們三位前任主席十分清楚他的來歷，今日能夠成為原居民，我也不思其解。從陳廣全先生證明黎榮先生馬灣原居民，我們經幾拾年來甚至百年來，只知道他們是水上人，何解可證明是原居民呢？在港英政府時代，他們沒法提供足夠資料核實，搬遷時同樣以原居民補償法。如果他們所說是青衣原居民，我們真的無法接納” (陳天送)

(emphasis supplied).

28.  The respondent also refers me to another meeting of the Committee held on 10 December 2002 where the Committee maintained the applicant was not an indigenous inhabitant of Tsing Yi.  The Committee opined that the Lands Department was correct in concluding the applicant was an indigenous inhabitant of Ma Wan.

29.  The respondent further relies on the affirmation of Mr Tang Kwok Kong (Chairman of the Committee) (“Tang”).  The respondent points out, according to him:-

(a)     members of the Committee do not include those from “Tsing Yi Hui”;

(b)    the villages recognised by the Committee are those which existed since at least 1898 and:-

(1)   consisted of villagers with the same family name traceable to a genealogy;

(2)   maintained a “Tsz Tong” (祠堂), or ancestral graves;

(3)   identifiable physically by a demarcation by way of walls or field lines;

(c)     no villages (other than those already members of the Committee) possess the characteristics set out in sub-para. (b) above;

(d)    “Tsing Yi Hui” was not a village, let alone an indigenous village.  It was only “Tsing Yi Main Street” (青衣大街) which was a market street with shops and restaurants.  The residents there came from different places and settled there only in (relatively) recent times;

(e)     the applicant’s father only purchased a shop there in 1964;

(f)     the Block Lease did not show the applicant’s ancestors owned any land in Tsing Yi

(para. 5 to 6, 11 to 15 and 19 to 22 thereof).

30.  As stated above, the Committee adopts a similar stance as the respondent.  The Committee basically also relies on the same materials relied upon by the respondent.  It asks the court to note the applicant has not provided any evidence to show that the above criteria for recognising a village are applicable to “Tsing Yi Hui”.

(b)     Parties’ Arguments

31.  The applicant contends I should find “Tsing Yi Hui” was (or, at least arguably was) an indigenous village.  The reasons put forth in support include:-

(1)     the statement of the Deputy Secretary for Home Affairs made during the meeting of the Working Group on Village Representative Election (on 4 June 2002) (see para. 26 above) shows that the Government regarded the 1991 List as conclusive of the status of a village;

(2)     the Committee’s view, in particular the statements made by the individuals at the 2002 meeting of the Committee, should not be accepted (or should at least be viewed with suspect) because there is a conflict of interest between them and that the village representative(s) from “Tsing Yi Hui”;

(3)     even if “Tsing Yi Hui” was a market place as the Committee asserts, it is still a “village” within the wide meaning given to that word by Cap. 576.

32.  In relation to sub-para. (3) above, the word “village” is defined by Cap. 576 to “[include] a community”: s. 2, Cap. 576.  The applicant therefore argues that, irrespective of whether “Tsing Yi Hui” used to be a market place, market street, or a village (in the ordinary sense of the word), once it is accepted (which the respondent and the Committee have) that place has its own residents, “Tsing Yi Hui” is a “village” within the meaning of s. 2, Cap. 576.

33.  On the other hand, the main argument of the respondent and the Committee is that, they have evidence (albeit hearsay in nature) from individuals who can claim to have personal knowledge of the origin of “Tsing Yi Hui”.  There is no evidence as to how the 1991 List was compiled.  Further, the applicant has not put forth any direct evidence to refute what these individuals said.

34.  They also argue that the real issue here is whether “Tsing Yi Hui” was an “Indigenous Village”, not simply whether it was a “village”.

35.  In addition, there is nothing wrong with the Secy consulting the Committee before making a decision.  After all, the Committee has been the body which has the greatest knowledge about factual matters relating to indigenous inhabitants and/or indigenous villages.  The Government has therefore been correct to consult the Committee as regards the status of the applicant’s father.  It should be noted the applicant has not challenged the validity of that consultation.

(c)     Conclusion regarding Issue 1

36.  I agree with the respondent and the Committee.  I do not accept the applicant’s arguments (set out in para. 31(1) to 31(3) above).

37.  The statement of the Deputy Secretary of Home Affairs (see para. 26 above) was made before the enactment of Cap. 576 (originally Ordinance No. 2 of 2003).  Further, the fact that “Tsing Yi Hui” is (and was) not included in any of the said schedules in Cap. 576 shows that the applicant’s argument at para. 31(1) above cannot be correct.

38.  I do not accept that there is a conflict of interest between “Tsing Yi Hui” and the individuals who objected to the inclusion of “Tsing Yi Hui” into any of the said schedules in Cap. 576 (or, for that matter, a conflict of interest between “Tsing Yi Hui” and the Committee as a whole).  Even if there should be some exclusivist feeling on the part of these individuals, I do not find there is sufficient reason for doubting the truthfulness or reliability of these individuals.

39.  The applicant relies on the meaning given to the word “village” by Cap. 576: see para. 31(3) and 32 above.  It should be noted the words “village” and “Village” have been given different meanings.  The former word has been defined to include a community whereas the latter word has been given a statutory meaning (of being an “Existing Village”, an “Indigenous Village” or a “Composite Indigenous Village”).  Hence, Cap. 576 was not intended to regulate the election of representatives of simply any community in the New Territories; its legislative intention is to regulate the election of representatives of “Indigenous Villages” (and the like) of the New Territories.

40.  By virtue of the above matters, I am not satisfied that the applicant has established “Tsing Yi Hui” was an indigenous village.  In fact, I find the evidence relied upon by the respondent and the Committee to be truthful and reliable.  It is more probable than not “Tsing Yi Hui” was not an indigenous village.

Issue 2: Is the Applicant an Indigenous Inhabitant of Tsing Yi?

41.  In view of the above conclusion, it is strictly unnecessary to deal with the other issues (including this one).  This is because:-

(a)     irrespective of whether the Secy’s consideration was made in accordance with the provisions of Cap. 576, his conclusion is correct; and/or

(b)    the applicant does not have sufficient interest to bring this application: RHC Ord. 53 r. 3(7).

42.  The Committee further argues the applicant cannot be an indigenous inhabitant of Tsing Yi District.  In this connection, the Committee relies on the affirmation of Mr Luk Cheung Chuen (Principal Land Executive, Lands Department) (confirmed by Tang in para. 9 of his affirmation) regarding the factors to be considered by the Director of Lands for verifying such status:-

(1)     the property holding history of the individual in question and his family tracing back to the Block Government Lease;

(2)     his genealogy;

(3)     whether his family or clan has a “Tsz Tong” or ancestral graves in the village;

(4)     that individual is required to be certified in writing by a village representative (or the chairman of the rural committee concerned);

(5)     if the Director is in doubt, he will further investigate the matter and consult the village elders or require other proof

(para. 6 thereof).

43.  The Committee contends the applicant has not provided evidence regarding the above matters.  It also submits the materials relied upon by the applicant to establish his status are inadequate.

44.  In relation to the written confirmations given by Mr Chan Tin Sung (and others), the Committee asks the court to note the background leading to those documents.  When the Government resettled the residents and shop owners of “Tsing Yi Main Street” (that is, “Tsing Yi Hui”), the policy then was that only indigenous villagers could obtain compensation by way of resettlement (instead of monetary compensation).  The applicant’s father asked Chan to help him in his fight for resettlement compensation.  As was stated on the face of the documents, Chan only gave him the written confirmation for such purpose.  Further, insofar as primary facts are concerned, the written confirmations of Chan, Lau Wong Fat and others only confirmed the applicant’s ancestors had come to reside in Tsing Yi before 1889.  There was no confirmation of any fact showing that his ancestors were the indigenous inhabitants of Tsing Yi.

45.  It was also disclosed in the affirmations of Tang that, subsequent to the production of the Block Government Lease by the Committee in 2002, the Lands Department changed its view regarding the locality of the applicant’s indigenous inhabitant status (namely, an indigenous inhabitant of Ma Wan and not Tsing Yi).

46.  In short, I agree with the Committee regarding this issue.

Issue 3: Cap. 576

47.  The enactment of Cap. 576 has briefly been referred to above.

48.  The applicant argues that, once Cap. 576 has been enacted, his political right to be elected as a village representative is to be ascertained through the true construction of the provision thereof, and not by examining the background leading to its enactment.  He further contends that:-

(1)     insofar as the respondent should argue that the rights of “indigenous inhabitants” to vote and stand as candidates in village representative election are derived from Art. 40, Basic Law (which protects the “traditional rights and interests of indigenous inhabitants”) and are rights to the exclusion of others, that argument has been rejected in the decision in Chan Wah (at pp. 446C-7E);

(2)     in any event, such argument does not assist the respondent because, once it is ascertained that the applicant is also an “indigenous inhabitant” (as a matter of the proper construction of Cap. 576), the respondent’s said argument applies equally to the applicant;

(3)     the Legislative Council Brief relating to the Village Representative Bill shows that the proposed arrangement under Cap. 576 was not intended to be exhaustive.  This is because para. 11(a) of the Brief did not say that village representative elections can only be held in accordance with the existing system.

49.  I already found under the heading “Issue (1): Was ‘Tsing Yi Hui’ an Indigenous Village?” above, “Tsing Yi Hui” was not an “Indigenous Village” within the meaning of Cap. 576: see para. 40 above.  Accordingly, the provisions of Cap. 576 relating to the election of village representatives do not apply to “Tsing Yi Hui”.

50.  Thus, irrespective of the correctness of the applicant’s arguments (set out in para. 48 above), they cannot assist him.  It is therefore unnecessary to consider those contentions.

Conclusion

51.  By virtue of the above matters, this application is dismissed.

52.  For completeness, it is unclear if the applicant has put forth an independent ground in support of this application by arguing that the Secy’s consultation of the Committee before exercising his power conferred by s. 67, Cap. 576 is per se a sufficient ground for judicial review.  Para. 48, Form 86A arguably can be so understood, although it also states:-

“… The views of a rural committee may be sought by [the Secy] to help him decide whether a village was one in existence in 1898 and what its boundaries are for the purpose of … drawing maps under section 3 and keeping an Index under section 4 [of Cap. 576]”.

53.  Insofar as the applicant so argues, this has been dealt with in para. 35 and 36 above.  Moreover, I already found that the Secy’s decision was correctly made based purely on the fact that “Tsing Yi Hui” was not an indigenous village.  Even if such an independent argument should warrant further consideration, I would in the exercise of my discretion have dismissed this application.  This is because, even if there had been any procedural improprieties, no substantive unfairness was caused to the applicant: Hong Kong Civil Procedure 2004, para. 53/14/28 and Leung Fuk Wah Oil v. Commissioner of Police [2002] 3 HKLRD 653, para. 40-1 and 75-6.

Costs Order Nisi

54.  There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this application be paid by the applicant respectively to the respondent and the Committee to be taxed if not agreed.