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

HCAL 134/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 134 OF 2010

____________

BETWEEN

____________

_______________

J U D G M E N T

_______________

1.  Shek Lung Tsai [“the Village”] is a village situated in a remote and hilly part of Ma On Shan. It is not accessible by vehicular road. Though it can still be located on the map (at the south of Luk Chau Shan), the village itself had been relocated to a site in Sai Kung where it is called Shek Lung Tsai New Village which is accessible by Po Lo Che Road. Counsel told the court that the relocation has no bearing on the issues that I need to decide in these proceedings.

2.  The Village is listed as an existing village under Schedule 1 to the Village Representative Election Ordinance [“the Ordinance”] as well as an indigenous village under Schedule 2.  With the introduction of reforms after the Court of Final Appeal’s decision in Secretary for Justice v Chan Wah (2000) 3 HKCFAR 459, there is a dual system for elected village representatives in Hong Kong.  Indigenous Inhabitant Representative [“IIR”] is elected amongst indigenous inhabitants of an indigenous village whilst Resident Representative [“RR”] is elected amongst all resident of an existing village.  Since the Village is both an indigenous village as well as an existing village, there are elections for IIR and RR.

3.  The present proceedings only concern the IIR election for the Village, or more precisely the 2010 register for such election.  The eligibility for being registered as an elector in an IIR election is laid down by Section 15(5) of the Ordinance.  There is no requirement that the person is a current resident of the village.  Instead, he or she must be an indigenous inhabitant of the village or a spouse or surviving spouse of an indigenous inhabitant.  Indigenous inhabitant is defined in Section 2.  For present purposes, I only need to refer to the following definition,

“In relation to an Indigenous Village that existed in 1898 … [indigenous inhabitant] means —

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

(b) A person who is descended through the male line from a person mentioned in (a).”

4.  The Applicant was duly elected as the IIR in the election held in 2011. However, he contended that some of persons registered as electors in the register should not be electors on the basis that they were not indigenous villagers of the Village.  He appealed against the decision of an Electoral Registration Officer [“ERO”] and the appeal was heard by a Revising Officer [“the RO”].  The RO ruled against him on 17 September 2010.  His solicitor sought a review before the RO.  The RO heard the review on 29 September 2010 and upheld his original determination.  The Applicant applied for judicial review on 23 December 2010.

5.  The Applicant’s term of office would run until 2015[1]. Further, the register of electors shall be compiled each year[2]. Thus there is opportunity to raise objection in respect of the provisional register on each compilation[3]. The register of 2010 was replaced by the register of 2011.  And the 2011 register would in turn be replaced later by registers compiled in subsequent years.  Be that as it may, the Applicant argued that the court should entertain this judicial review because 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.  I shall come back to this question later.

6.  As regards the decision of an RO on hearing an appeal, Section 19(2) of the Ordinance provides that his decision is final.  At the early stage of the proceedings, the Applicant challenged the constitutionality of this provision. At the direction hearings, Mr Stewart Wong SC (appearing for the 2^nd Respondent) accepted that the provision does not exclude challenge by judicial review.  With that indication, Mr Yau (for the Applicant) informed the court that he needed not pursue with his claim for declaratory relief concerning the constitutionality of Section 19(2).  On that basis, the 2^nd Respondent was excused from attending the substantive hearing.  The Interested Parties (whose status as electors was challenged by the Applicants), whom I will call the Fungs, and the Applicant became the main protagonists in this matter.

7.  In the skeleton submissions of Mr Yau, counsel summarized the remaining issue before this court as follows,

“So the only issue in this application is whether the Determinations accepting the ‘indigenous inhabitants’ status of the Interested Parties are unreasonable in the Wednesbury sense.”[4]

8.  However, as further discussed below, it appears that the substance of Mr Yau’s complaint is about what counsel perceived to be defects in the reasoning process of the RO in the weighing of the evidence instead of the rationality of his decision as viewed against the evidence before him.

The proper role of the court in this judicial review and the standard of review

9.  As I observed at the hearing (and Mr Yau accepted), the court would not conduct this judicial review as if it was an appeal against the decision of the RO.  The compilation of the elector register is an administrative act.  The legislature entrusted that task to the Electoral Registration Officer in the first instance and provided an avenue of administrative appeal to the RO.  Even though Section 53 of the Ordinance empowers the Chief Justice to appoint a magistrate to be an RO, this does not render the hearing of such appeal by the RO to be a judicial process.  In my judgment, when a RO hears an electoral appeal under Section 19 of the Ordinance, he is not acting in a judicial capacity.  Rather, he is performing the function of an administrative tribunal.

10.  The Ordinance does not require the RO to give reasons for his decision. In the present instance, though the RO made certain oral remarks when he gave his decisions at the hearings (including the review hearing), it would not be right to read those remarks as if they were a full judgment rendered by the RO in a judicial process.  Actually, the RO did not purport to give a full judgment.  He simply addressed the major issues at the end of the hearing without actually reviewing all the evidence.  It would appear that there was evidence placed before him that he did not specifically comment upon.  However based on his remarks in the course of the hearings and those at the end of them, it can be gathered that the RO did accept and act upon such evidence.  Bearing in mind the administrative nature of the process, I do not think one should ignore such evidence in assessing the rationality of his decision.

11.  Mr Dykes SC (appearing with Mr Pun for the Interested Parties) referred this court to the judgment of Lord Diplock in Mahon v Air New Zealand [1984] 1 AC 808 at p. 820-1 in respect of the duty of an administrative tribunal in the conduct of hearing,

“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 though it cannot be predicted that it would inevitably have had that result.”

12.  Mr Yau did not dispute these propositions.  However, counsel submitted that the court should apply an enhanced Wednesbury standard in assessing the rationality of the decision of the RO.  Counsel cited Gutierrez Josephine B v Commissioner of Registration HCAL 136 of 2010, 10 Nov 2011, para. 14, R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115 at p. 1130B and R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at p. 549 to support his contention.

13.  Mr Dykes submitted that there is no basis for adopting an enhanced standard in the present context.  Counsel said Article 26 of the Basic Law guarantees “the right to vote and the right to stand for election”.  But there is no “right to be elected” and the Applicant’s right to vote and to stand for election is not affected by the decision of the RO.

14.  Counsel did not develop this aspect of their submissions at great length during the hearing.  As presently advised, I am not prepared to limit the application of enhanced standard to cases where a right in question is guaranteed by the Basic Law.  Nor should it be assumed that whenever a right protected by the Basic Law is engaged, the court will apply the enhanced standard.  In Secretary for Security v Prabakar (2004) 7 HKCFAR 187, the Court of Final Appeal was not concerned with the right of a resident under the Basic Law.  Rather, the determining factor is the gravity of the subject matter. This is reflected in para. 45 of the judgment of Chief Justice Li,

“… But having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required standards of fairness have been met.”

15.  A similar approach was suggested by Law LJ in R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115 at p. 1130B,

“Fairness and reasonableness (and their contraries) are objective concepts; otherwise there would be no public law, or if there were it would be palm tree justice. But each is a spectrum, not a single point, and they shade into one another. It is now well established that the Wednesbury principle itself constitutes a sliding scale of review, more or less intrusive according to the nature and gravity of what is at stake …”

16.  The subject matter at stake is the registration of electors for IIR election in the Village.  Whilst there is certainly no “right to be elected”, it cannot be disputed that electors and candidates in an election are entitled to expect that the integrity of the election is maintained.  Irrespective of the position under Article 26 of the Basic Law, the proper maintenance of the electoral register is an important element in upholding the integrity of an election.  If there is insufficient measure to safeguard against ineligible person casting vote, the integrity and consequently the credibility of election would be compromised.

17.  At the same time, it is equally unacceptable for eligible person to be wrongly denied his or her right to vote.  Therefore, a decision as to the eligibility of an elector is an integral part of the electoral system.

18.  Though the office of IIR does not carry with it as many functions and duties as a Legislative Councillor or a District Councillor, it is still a representative office serving a significant number of persons so represented.  Further, as observed by the Chief Justice in Chan Wah[5], the village representative has a role beyond the village.

19.  Whilst an elected IIR would hold office for 4 years, the present case is not about the result of the election in 2011.  The Ordinance prescribes that the result of a village representative can only be challenged by an election petition[6] and the standard of review in an election petition could be more stringent than that applied in a judicial review in respect of the decision of the RO per se.  As explained above, the Applicant was successful in the 2011 election and there is no election petition.  What the Applicant challenged is the decision of the RO with regard to the compilation of the electoral register.  The register is revised on a yearly basis.  There is statutory mechanism for raising objection in every revision.  This is a relevant feature in gauging the appropriate standard for review.

20.  I bear all these in mind.  On the whole, it has to be acknowledged that the gravity of the subject at stake is less serious than those in Prabakar and Gutierrez Josephine B.  Thus, I do not think the court would adopt an enhanced standard of review as prescribed in those cases.  However, I shall have the matters at paras. 16 to 19 in mind in scrutinizing the decision of the RO.  In so doing, it could be said that I am following the approach endorsed by Laws LJ.

Is the decision of the RO Wednesbury unreasonable?

21.  I can now turn to the substance of Mr Yau’s attack on the decision of the RO.  Before I addressed the attacks as such, I should explain briefly the necessary background and decision of the RO.

22.  The Applicant objected to the registration of the Fungs as the electors on the ground that they were not indigenous inhabitants of the Village.  As stated in para. 17 of the Form 86, the primary matter relied upon by the Applicant in raising the objection was as follows,

“This is because the Applicant and his fellow villagers of the Ng clan have never seen any Fungs living in the Village whether before or after it was relocated in 1965.”

23.  Para. 19 of the Form 86 referred to the fact that even on the case of the Fungs, they had left the Village long ago.  Para. 20 said, [the Fungs] “are, in the honest belief of the Applicant, not descendants of the male line of any indigenous inhabitants living in the Village as at 1898.” That is a reference to the definition for indigenous inhabitants in Section 2 of the Ordinance.

24.  There is evidence adduced on behalf of the Fungs disputing the Applicant’s professed lack of knowledge as to the indigenous inhabitant status of the Fungs.  However, the primary question is not about the Applicant’s knowledge or belief.  Neither is it determinative that the Fungs had not been residing in the Village for a long time.  The RO correctly identified[7] the following as the two important issues in the proceedings,

(a)   Were there any inhabitants surnamed Fung living at the Village in 1898?

(b)   If there were, were the Fungs their descendants?

25.  The Fungs relied on the ownership of a plot of land in the Village by one Fung Yam Fat [“FYF”] as evidence of presence of inhabitant by the name of Fung in the Village in 1898.  Such ownership is established by an entry in the Block Crown Lease for Demarcation District No. 200 Lot No. 4.

26.  The Applicant contended the mere ownership of a piece of land in the Village did not establish that FYF was an inhabitant of the Village in 1898.  Strong emphasis was placed on the address of FYF being stated to be Shatin Tau (which was not in the locality of the Village) in the Block Crown Lease.  At the hearing before this court, Mr Yau contended that the RO had failed to give due consideration to this address and as such invalidated his finding.

27.  The Fungs did give an explanation for this address.  It was said that due to the remoteness of the Village their ancestors had to move elsewhere to make a living.  They said this relocation occurred between 1898 and 1907 (when the Block Crown Lease was issued).  Thus, it was not surprising that the address of FYF was stated to be Shatin Tau in the Block Crown Lease.

28.  On the materials before this court, it is plain that the RO did have regard to the address of FYF in the Block Crown Lease.  The point was specifically canvassed by Ms Chan (on behalf of the ERO) at the original hearing before the RO[8]. It was reiterated by the solicitor for the Applicant in his letter requesting for review.  He made the same point again in his oral submission at the review hearing[9]. The RO addressed the point in his discussion with the solicitor at the hearing[10]. In essence, the RO assessed the likelihood of someone (not of same surname as the majority in the Village) owning a piece of land at such remote place without inhabiting there in the circumstances of 1898.  He concluded it was more probable that FYF did inhabit at the Village in 1898.

29.  It was also clear that the RO accepted the evidence of the Fungs as to their relocation from the Village after 1898[11]. Such evidence included the statement of Fung Pak Keung of 17 September 2010.  In the statement, he recited that FYF was his ancestor and his own grandfather left the Village when he was 10 odd years old and moved to Ngau Chi Wan whilst another branch of the Fung family moved to Shatin Tau. 

30.  As mentioned above, the proceedings before the RO and his determination are administrative in nature.  As such, the proceedings are not subject to the strict rules of evidence applicable in a court of law.  In this connection, the RO could not be criticized for bearing in mind the difficulty in having direct and concrete evidence of events which took place between 1898 and 1907 due to the long lapse of time and adopting a pragmatic approach in assessing the materials before him.

31.  Viewed in this light, I do not think the RO’s finding that FYF was an inhabitant of the Village in 1898 could be regarded as Wednesbury unreasonable.

32.  On the second issue, the Fungs relied on the production of the rent receipts (tracing back to 1962) by a relative Fung Wing Cheong [“FWC”] as evidence of they being the descendants of FYF.  Though FWC is not one of the electors being challenged, he was described as a cousin by one of them[12].

33.  The RO attached great significance to the production of these rent receipts[13]. He took the view that the person who paid the rent in respect of the land of FYF for such a long period was likely to be his descendants.  Bearing in mind the nature of the proceedings and the state of evidence before him, I do not regard this as Wednesbury unreasonable.

34.  Mr Yau attacked this aspect of the decision by reference to what he labeled as the FWC factor.  In substance, counsel placed reliance on the fact that FWC himself was registered as an elector for IIR election for Shatin Tau Village.  Ergo, counsel said, he could not be an indigenous inhabitant of the Village.

35.  The point was actually made in the letter by the solicitor for the Applicant dated 28 September 2010 seeking a review before the RO.  A response was given in a letter dated 29 September 2010 from the solicitor for the Fungs. Their answer was that FWC came from another branch of the family. Though their common ancestor was FYF, the great grandfather of FWC had probably left the Village before 1898 and moved to Shatin Tau.  Thus, in the case of FWC, he had an ancestor who lived in the Village as well as an ancestor who lived in Shatin Tau in 1898.  This scenario is within the contemplation of the Village Representative Election Ordinance Cap. 576, see Section 15(7).   

36.  According to the transcript, solicitor for the Applicant did not refer to the FWC factor again at the review hearing.  Thus, it was not surprising that this point was not canvassed by the RO during that hearing.  It may be that the RO assumed the Applicant had accepted the response in the letter of 29 September 2010.  But I am not going to speculate.

37.  It is not for this court to act as the primary decision-maker in assessing the adequacy of the response in the letter of 29 September 2010 on the assumption that the FWC factor was a live issue before the RO.  If the Applicant wished to maintain his challenge based on the FWC factor, his solicitor should at least articulate the same during the review hearing.  All I need to say in the present context is that given the reticence of the solicitor for the Applicant at the review hearing, this court does not see any ground for setting aside the decision of the RO as being Wednesbury unreasonable simply because the RO did not explicitly address the FWC factor in the review hearing.

Discretionary consideration and disposition of the case

38.  I now revert to the question of utility of this challenge notwithstanding the successful election of the Applicant as IIR in 2011 and the fresh opportunity to raise objection in the annual compilation of the elector register.  Mr Yau justified the continuation of this challenge by reference to the preparation of the provisional register based on the preceding year’s final register.  If the decision of a RO in the preceding year were based on some points of law which would probably be regarded as binding when a similar point arises in the compilation of the registers in subsequent years, there might be some force in the justification.  However, as analysed above, Mr Yau’s challenges in the present case do not relate to any error of law on the part of the RO.  In respect of a determination based on RO’s assessment of the materials placed before him, there is no rule of law which prescribes that a RO has to be bound by a previous determination.  The actual practice, as illustrated by what happened in this case[14], shows that a RO would consider the matter afresh in dealing with each objection.  Against such background, I do not see any good reason why this court should be asked to intervene in the exercise of its judicial review discretion with an administrative decision the effect of which had effectively been spent.

39.  The application for judicial review is accordingly dismissed.  I also make a costs order nisi that the Applicant shall pay the Interested Party’s costs and the costs of the Respondent, such costs to be taxed if not agreed.