Chung Chiu v. Secretary for Justice

HCAL 69/2014

[2018] HKCFI 1421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 69 OF 2014

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J U D G M E N T

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A.   INTRODUCTION

1.The Rural Representative Election Ordinance (Cap 576) (“the RREO”) provides the statutory basis for the election of (a) village representatives for “Existing Villages”, “Indigenous Villages” and “Composite Indigenous Villages” in the New Territories, and (b) kaifong representatives for “Market Town” in the New Territories.

2.The names of “Existing Village”, Indigenous Village” and “Composite Indigenous Village” are listed out respectively in Column 1 of Schedule 1, Column 1 of Schedule 2 and Column 1 of Schedule 3 to the RREO.  The names of “Market Town” are listed out in Column 1 of Schedule 3A of the RREO.

3.Relevant for the present purpose, under sections 15(5A)(b) and (d) of the RREO, a person is not eligible to be registered as an elector for a Market Town unless the person, among others,

(1)   has been a resident of the Market Town for the three years immediately before the date of the application for registration (under section 15(5A)(b)) (“the 3‑Year Residence Requirement”); and

(2)   is a Hong Kong permanent resident (under section 15(5A)(d)) (“the HKPR Requirement”).

4.Cheung Chau and Peng Chau are the only named Market Towns listed under Schedule 3A the RREO.  The applicant (Mr Chung) in this judicial review was born in Cheung Chau but has moved out of it since 1999.  He no longer resides in Cheung Chau.  He therefore does not satisfy the 3-Year Residence Requirement.

5.In this application, Mr Chung challenges the constitutionality of sections 15(5A)(b) and (d) (“the Impugned Provisions”) in stipulating respectively the 3‑Year Residence Requirement and the HKPR Requirement (collectively, “the More Stringent Requirements”) for persons seeking to be registered as an elector in the Market Town.

B.   GROUND OF JUDICIAL REVIEW

6.Initially three grounds were raised in the Amended Form 86 in support of this judicial view.  However, at the hearing, Mr Yim, counsel for Mr Chung, has made it clear that he will only pursue Ground 2 to challenge the constitutionality of the Impugned Provisions.[1]

7.Under Ground 2, Mr Chung says the Impugned Provisions are discriminatory as the More Stringent Requirements do not apply to a person seeking to be registered as an elector for an Indigenous Village or a Composite Village (collectively “Indigenous/Composite Village”) under section 15(5). It is therefore inconsistent with Article 25 of the Basic Law (“BL25”) and Article 22 of the Bill of Rights (“BOR22”) which protect the right to equality.[2]  The Impugned Provisions are thus unconstitutional.

8.BL25 and BOR22 respectively provide as follows:

(1)   BL25

“All Hong Kong residents shall be equal before the law.”

(2)   BOR22

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any grounds such as… other status”.

9.The court’s approach when considering whether there is infringement to the right to equality has been explained by Li CJ in Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335, at paragraphs 19 - 22 as follows:

“19. In general, the law should usually accord identical treatment to comparable situations. As Lord Nicholls observed in Ghaidan v Godin-Mendoza [2004] 2 AC 557 at p.566C:

Like cases should be treated alike, unlike cases should not be treated alike.

20. However, the guarantee of equality before the law does not invariably require exact equality. Differences in legal treatment may be justified for good reason. In order for differential treatment to be justified, it must be shown that:

(1) The difference in treatment must pursue a legitimate aim. For any aim to be legitimate, a genuine need for such difference must be established.

(2) The difference in treatment must be rationally connected to the legitimate aim.

(3) The difference in treatment must be no more than is necessary to accomplish the legitimate aim.

The above test will be referred to as ‘the justification test’. In the present case, the Court has had the benefit of submissions on its appropriate formulation. There is no material difference between the justification test and the test stated in R v Man Wai Keung (No 2) [1992] 2 HKCLR 207 at p.217 which was used by the Court in So Wai Lun v HKSAR (2006) 9 HKCFAR 530 at para.20.

21. The burden is on the Government to satisfy the court that the justification test is satisfied. Where one is concerned with differential treatment based on grounds such as race, sex or sexual orientation, the court will scrutinize with intensity whether the difference in treatment is justified. See Ghaidan v Godin-Mendoza [2004] 2 AC 557 at p.568G (Lord Nicholls).

22. In requiring differential treatment to be justified, the view has been expressed that the difference in treatment in question is an infringement of the constitutional right to equality but that the infringement may be constitutionally justified. See the Court of Appeal’s judgment in the present case at p.208B-C (Ma CJHC) and in Leung v Secretary for Justice [2006] 4 HKLRD 211 at p.234G-H. This approach is not appropriate. Where the difference in treatment satisfies the justification test, the correct approach is to regard the difference in treatment as not constituting discrimination and not infringing the constitutional right to equality. Unlike some other constitutional rights, such as the right of peaceful assembly, it is not a question of infringement of the right which may be constitutionally justified.” (emphasis added)

10.Hence, the law does not treat differential treatment between two groups of person as discrimination if there is sufficient relevant difference between them to warrant the differential treatment.  If the two groups of person are not in comparable situations, no question of discrimination arises as the law does not require them to be treated identically.  However, if they can be regarded as to be in comparable situations, there would be prima facie discrimination unless the differential treatment can be justified under the proportionality test.  The burden is on the respondent to show that the differential treatment satisfies the proportionality test.[3]

11.In the present case, Mr Yim submits that the Impugned Provisions are discriminatory because:

(1)   Persons seeking to be registered as electors for Indigenous/Composite Village are in comparable situations with persons seeking to be registered as electors for Market Town since they are all descendants from indigenous inhabitants of the New Territories since 1898.

(2)   However, the More Stringent Requirements are clearly differential and less favourable treatment imposed on Market Town residents seeking to be registered as electors as they are not applicable to the Indigenous/Composite Village residents.

(3)   Hence, the Government has the burden to justify the differential treatment, but it has not provided any evidence in the present case to do so.

(4)   In the premises, the differential treatment is not justified (let alone proportionally justified) and is discriminatory.  The Impugned Provisions in imposing the differential treatment are therefore inconsistent with BL25 and BOR22.

12.On the other hand, Mr Lui for the Secretary for Justice contends that, examined in its proper context of election, Market Town residents and Indigenous/Composite Village residents are not in comparable situations.  As such, the question of discrimination simply does not arise as unlike cases are not required in law to be treated similarly.

13.Given the above opposing contentions, the only issue that arises in this application is a narrow one: whether persons seeking registration as electors respectively for Indigenous/Composite Villagers and for Market Town can be regarded as to be in comparable situations for considering the question of discrimination.

14.Mr Yim submits that they are.  Counsel contentions can be summarized as follows.

15.The RREO is simply to provide the legislative framework to reflect and legalise what have been the respective traditional and historical elections held by the inhabitants of Existing Villages, Indigenous Villages, Composite Villages and Market Towns in the New Territories to elect their respective representatives to participate and give advices to the Government in administering the affairs of the New Territories.

16.Mr Yim points out that this is underlined and supported by the following undisputed history of village representation elections held in the New Territories and the legislative history of the RREO.

17.First, the undisputed brief history of the village representation system in the New Territories has been set out in Lai Tak Shing v Secretary for Home Affairs (2007) 10 HKCFAR 655 at paragraphs 7 - 10 and 42, per Chan PJ (as the learned NPJ then was).  It can be summarized as follows:

(1)    The village representation system in the New Territories which existed prior to 2003 only came into existence during the Japanese occupation.  In the early years, a village representative to deal with the Government was elected or chosen by the heads of households in a village from among themselves.

(2)    In August 1994, a set of Model Rules for the Conduct of Village Representative Elections was introduced by the Heung Yee Kuk and adopted by a large number of indigenous villages in the village representative election held in 1999.  It should be noted that the Model Rules did not exclude non-indigenous villagers from voting.  Each village also promulgated their own election rules.[4]

(3)    In December 2000, the Court of Final Appeal in Secretary for Justice v Chan Wah(2000) 3 HKCFAR 459 held, among other things, that certain arrangements adopted for the 1999 village representative election were unconstitutional.

(4)    Following this decision, it was considered by the Government that the village representation system existing then should be put under a proper statutory framework and that village representative elections must be conducted in an open, fair and honest manner and must be consistent with BOR21 and section 35 of the Sex Discrimination Ordinance (Cap 480).

(5)    A working group was set up to review the procedure and arrangements for rural elections.

(6)    Extensive consultation with the Heung Yee Kuk and all 27 rural committees in the New Territories was conducted on the basis that there was to be no change to the then existing number of indigenous villages and existing village settlements or for that matter, the identity of these villages.

(7)    A bill was proposed for regulating village representative elections in 2003 as well as in subsequent years.  The underlying principle for the proposed legislation was that the 2003 village representative elections should be held for indigenous villages and existing village settlements which were included in the village representation system in the New Territories and in the village representation election in 1999.

18.As a result, and after full consultation with various stakeholders, in particular, the Heung Yee Kuk, the Village Representative Election Ordinance (Cap 576) (“the VREO”) was enacted on 12 February 2003 to regulate village representative elections that had been held every four years in the New Territories since August 1994 under a set of Village Representative Election Rules.[5]

19.Second, Mr Yim then points out that the Cheung Chau Rural Committee (“the CCRC”) was established in or around 1961.  It is one of the 27 Rural Committees in the New Territories that form the Full Council of the Heung Yee Kuk, the statutory body that historically represented predominantly the interests of indigenous villages.

20.Article 4 of the Articles of the CCRC (章程) dated 1961 (“the Articles”) provides that the CCRC serves the whole of Cheung Chau Island, and Article 10 provides that the members committee (會員大會) is formed by 39 Representatives (代表) elected by secret ballot under the supervision of the District Office.  The CCRC has since held such elections.[6]

21.The 39 elected Representatives of the CCRC had at times been called “Village Representatives” of Cheung Chau:

(1)   “1926-1986新界鄉議局成立六十週年慶典特刊” published by the Heung Yee Kuk in 1986,[7] where members of the CCRC were described as “Cheung Chau Rural Committee and Village Representatives” (長洲鄉事會委員及各村代表).  See also the applicant’s 4^th Affirmation at paragraph 12.

(2)   A “Village Representative Identity Card” (村代表身份證) issued by the Secretary for District Administration on 28 July 1987 for one Mr Ng Chi Fai (吳志輝), a representative of the CCRC (長洲鄉事委員會代表).

22.Article 21 of the Articles provides that any amendments to the Articles of the CCRC must be approved by the District Office.  Mr Yim fairly draws the court’s attention to the fact that an amendment to the Articles was made on 11 March 1999.  It added references of “Kaifong” to the representatives of Cheung Chau, and the criteria for registration as electors and candidates in the “Kaifong Representative elections” including permanent resident status and residence in Cheung Chau.

23.Third, on 26 March 2014, the Legislative Council passed the Rural Representative Election Legislation (Amendment) Ordinance 2014 (Ordinance No 5 of 2014) (“the Amendment Ordinance”), amending the then VREO.  After the amendment, the VREO was renamed as the RREO.

24.The Government’s stated purpose for the Amendment Ordinance is to provide for legislative regulation for the election of “Kaifong Representatives” for Cheung Chau and Peng Chau.

25.In light of the above legislative background, Mr Yim submits that the RREO is to provide the statutory framework to legalise the historical and traditional election of representatives by all the inhabitants of the Rural Area (which is defined to mean “an Existing Village, an Indigenous Village, a Composite Village or a Market Town” under section 2(1) thereof).

26.In this respect, Mr Yim further submits that these inhabitants of the various Villages and Market Towns, who are residents traditionally and historically eligible to elect their respective representatives, are all descendants of the indigenous inhabitants of the New Territories (who were residing in the New Territories in 1898), within the meaning of BL40.[8]

27.In the premises, Mr Yim therefore says residents of a Market Town who wish to be registered as an elector to elect its “Rural Area” representatives stand in comparable situations as residents of an Indigenous/Composite Village who wish to be registered as an elector to elect its “Rural Area” representatives.  They are all descendants of the indigenous inhabitants of New Territories seeking to participate in the traditional and historical elections held in the New Territories to elect their respective representatives.

28.With respect to Mr Yim, I am not persuaded by his submissions.

29.The question of whether a complainant of a discriminatory differential treatment is in a comparable situation as the comparator must be looked at and answered with reference to the proper context.

30.In the present case, whether Mr Chung (or a Market Town resident) is in a comparable situation with an Indigenous/Composite Village resident must be considered in the context of the kind and nature of election historically and traditionally held in these settlements for electing their respective representatives.

31.In this respect, as submitted by Mr Lui, it is not disputed that the announced legislative intent of the VREO, enacted in 2003, was that the village representatives elections in 2003 and beyond “should be held for indigenous villages and existing village settlements which were included in the village representative system in the New Territories and in the village representatives election in 1999”[9] (emphasis added).

32.The respondent has also filed evidence in these proceedings supporting this legislative intent that only villages with village representative elections actually held in or before 1999 will be covered by the VREO (ie, as included in Schedules 1, 2 and/or 3 depending on whether a village is indigenous).[10]

33.In other words, the question of whether a particular settlement will be included in or excluded from a Schedule to the VREO previously (or the RREO at present) is purely factual, directing one’s focus to ascertaining what kind of election was held for that settlement in or before 1999 as a matter of reliable evidence.

34.The applicant does not challenge the respondent’s evidence on the legislative intent or policy of the VREO stated above.  In any event, Chan PJ in Lai Tak Shing at paragraphs 41 - 44, 48 and 50 has also referred to this limited purpose of the VREO:[11]

“41. In Secretary for Justice v Chan Wah, two aspects of the previous village representation system were found to be unconstitutional: the exclusion of non-indigenous residents and the spouses of indigenous women from village representative elections. The [VERO] was passed with a view to rectify the ‘mischief’ identified by this Court in that case. It was sought to achieve this by introducing the ‘dual representation’ model and making provision for the eligibility of electors and candidates in future village representative elections. The [VERO] was not intended to make any change to the then current delineation of boundaries of each constituency. The number and names of indigenous villages where village representative elections had previously been held had already been identified and recorded in an existing Index; and the number and distribution of existing village settlements were also well known and recorded in an existing map. These were not matters which needed to be addressed by enacting new legislation.

42. Extensive consultation for several months with the [Heung Yee Kuk] and the 27 rural committees in the New Territories was conducted on the basis that there was to be no change to the then current number of indigenous villages and existing village settlements or for that matter, the identity of these villages. This is clear from the records and documentation of the consultation. It was also the basis of an agreement reached between the Government and the [Heung Yee Kuk] and the rural committees as to how to proceed with future elections. More importantly, it was the basis on which the Schedules were prepared and published for public inspection and comments in July 2002 and it was these Schedules which were subsequently incorporated in the [VERO].

43. That there was to be no change to the then current number of indigenous villages and existing village settlements and only those villages in which election had been held in 1999 are to be included was also made amply clear in a Brief submitted in September 2002 by the [Home Affairs Bureau] to the Legislative Council during the introduction of the Village Representative Election Bill. The Bureau explained the reasons behind the Bill, the purposes it was sought to achieve and the proposed changes. Among other things, the Legislative Council Brief stated:

(i) that Village Representative elections should be held for indigenous villages (Indigenous Villages or Composite Indigenous Villages) and existing village settlements (Existing Villages) now included in the village representation system in the New Territories (para. 11(a)); and

(ii) that the current number of Indigenous Inhabitant Representatives (ranging from 1 to 5) for an Indigenous Village or a Composite Indigenous Village would be retained. (para.11(o)) (emphasis added)

44. The number, descriptions and locations of these villages were listed in the Schedules which formed part of the proposed legislation and were tabled before the Legislative Council. In passing the Bill in that form, it must be taken that the Legislative Council, having been informed of what was proposed and what was intended to be achieved by the Bill, made a conscious decision to adopt such an approach.

…

48. It is important to note that ‘Indigenous Villages’ and ‘Existing Villages’ are not defined in a descriptive way but by reference to the Schedules and to a specific Index or a specific map which were already in existence before the enactment of the [VREO]. The Schedules form part of the [VREO]. If the s.67 power were to be as wide as is submitted by counsel, this would mean that the Secretary has the power to redefine the constituencies by making changes to these definitions or even to overturn the whole village representation system by amending the Schedules. This is tantamount to giving a power to the Secretary to amend primary legislation. … I do not think the abovementioned consequence could have been intended by the Legislature.

…

50. I am therefore in no doubt that it was the clear intention of the Legislature to confine future village representative elections to those villages already on the list where elections had been held in 1999. …” (emphasis added)

35.On the other hand, there is also clear evidence showing that before 1999 there had never been any village or village indigenous representative elections held in Cheung Chau.  There have been only the “kaifong leaders or representatives” elections held historically and traditionally in Cheung Chau to return them as members of the CCRC.  This has been explained in the 2^nd Affirmation of Law Ka Wing as follows:

“18. More importantly, throughout its history, Cheung Chau had never had village representative election held among and for its ‘indigenous’ inhabitants. There were only elections for its ‘Kaifong’ representatives. This fact is demonstrated in the historical records. I refer to paragraph 20 of my 1^st Affirmation in which I have briefly described the history of ‘Kaifong’ organisations of Cheung Chau that eventually formed the CCRC in early 1960s, and supplement as follows:-

(1) Members of the CCRC, since its establishment in 1961, have never been called ‘village representatives’ (村代表). Instead, these individuals have been known as ‘Kaifong’ leaders or representatives. For instance, in a publicity leaflet dated 4 November 1960 entitled ‘1960年長洲新鄉事會選舉會員大會代表競選運動宣言’, it was written that ‘提名五十八芽弓城領袖能真正為街坊謀凍利的做鄉事代表候選人，以供選民的投票選擇’ and ‘我們特組成「街坊選舉運動」俾全洲居民，能作明智的選擇，以建立鄉事的良好基礎’. Similarly, in another publicity leaflet prepared for the same election in 1960, the title of the leaflet (‘街坊競選運動諾言’) also suggested that the CCRC election was not an election for the return of village representatives. There are now produced and shown to me marked ‘LKW-17’ true copies of the said publicity leaflets.

(2) The eligibility to participate in the CCRC election has always been based on residence in Cheung Chau (instead of male lineage tracing back to 1898 as in the indigenous inhabitant representative elections for the indigenous villages included in Schedule 2 or Schedule 3 to the VREO/RREO). In the initial years after establishment of the CCRC, electors and candidates had to be residents of Cheung Chau continuously for at least 10 years. This can be seen in the notice dated 5 May 1975, the notice dated 16 March 1987 and the newspaper clipping in June 1975 about a by-election of the CCRC, true copies of which are now produced and shown to me marked ‘LKW-18’, ‘LKW-19’ and ‘LKW-20’ respectively. Subsequently, the duration of residence requirement for an elector was reduced to 7 years, as shown in another notice dated 21 April 1997, a true copy of which is now produced and shown to me marked ‘LKW-21’. The duration of residence requirement for a candidate remained as 10 years, as shown in another notice dated 5 May 1997, a true copy of which is now produced and shown to me marked ‘LKW-22’. These 7-year and 10-year residence requirements were stated in 第六條(甲) and (乙) of the CCRC Constitution as at 11 March 1999 (‘LKW-13’ to my 1^st Affirmation), and at some point afterwards were reduced to 3 years and 6 years respectively.

(3) In the 2010 CCRC election (i.e. the one held immediately before the Rural Representative Election Legislation (Amendment) Ordinance 2014 《2014年鄉郊代表選舉法例(修訂)條例》came into effect), electors had to meet the 3-year residence requirement while candidates had to meet the 6-year residence requirement, as stated in the Nomination Form (with guidelines) prepared for that election, a true copy of which is now produced and shown to me marked ‘LKW-23’. Again, as one can see, the election was called ‘2010 Cheung Chau Rural Committee Kaifong Representative Election’. These residence requirements were incorporated to the RREO: see section 15(3A) for electors and section 22(2A) for candidates.”

36.The fact that Cheung Chau was to elect “kaifong representatives” as opposed to “village or indigenous village representatives” before 1999 is supported by various primary or documentary evidence referred to in Law Ka Wing’s 2^nd Affirmation quoted above.[12]  For example, in the public notice entitled “離島政務處通告” issued by the then “離島政務專員” in April 1997, in announcing the publication of the provisional register of electors in Cheung Chau, it was stated clearly that it was for the election of “kaifong representatives” for the CCRC: “長洲鄉事委員會街坊代表選舉第十六屆（一九九五至一九九九年）公佈臨時選民名冊” (emphasis added).

37.The applicant appears to contend that given phrases like “village representatives” or “kaifong representatives” have never been “defined” in the statute, it is nothing but a matter of labelling.  As mentioned above, he also seeks to suggest that the representatives returned by elections in Cheung Chau could sometimes and indeed should be called “village” (instead of “kaifong”) representatives (see for example the matters stated in paragraph 21 above as relied on by the applicant).

38.However, I agree with Mr Lui that the argument is without merit because the categorisation of an election looks into substance, not labelling.  In the case of Cheung Chau, the important historical fact is that “residency” has always been one of the eligibility requirements for both electors and candidates in its chosen nature and form of election.  “Lineal descendancy” (an essential eligibility criterion in the nature and form of elections chosen by the Indigenous/Composite Village historically to return “indigenous village or village representatives”) has never been an eligibility requirement for either electors or candidates in Cheung Chau’s elections.[13]  There is again no suggestion or evidence from the applicant showing otherwise.

39.The unchallenged evidence is also that the RREO simply incorporated the residency requirements for both electors and candidates that had been imposed in the 2010 “kaifong” representatives election in Cheung Chau (being the latest election before the legislative exercise in 2013 - 2014 resulting in the RREO).[14] The residency requirements for candidates and electors in that election were set out in the relevant Nomination Form.[15]

40.As stated at paragraph 17 of the Nomination Form, in relation to the eligibility of an elector, Article 6 of Chapter 2 of the Articles itself imposed, among others, the 3-Year Residence Requirement and the HKPR Requirement.  It must be remembered that the Articles are prepared and adopted by the CCRC itself.  It is the applicant’s own case that the CCRC represents and serves the interest of the Cheung Chau residents and has since 1961 been the organisation carrying out the elections in Cheung Chau to elect Cheung Chau’s representatives (see paragraphs 19 and 20 above).

41.In any event, as pointed out by Mr Lui, most of the “evidence” produced and relied on by the applicant in these proceedings to argue that Cheung Chau should be treated as a “village” with village representatives elections had already been considered by the Government in the legislative exercises in both 2009 and 2013 - 2014.  The Legislative Council had adopted the Government’s analyses and conclusions on that Cheung Chau had never held any “village representatives elections”.[16]

42.The Legislative Council had therefore received evidence obtained after full public consultation on the question of whether Cheung Chau in the context of election is a village with village representative elections.  After having deliberated on this issue, in enacting the RREO, the Legislative Council decided to include Cheung Chau in the new Schedule 3A as a Market Town but not Indigenous/Composite Village in the other Schedules.[17]

43.In this respect, it is also pertinent to note that, as the Court of Final Appeal held in Lai Tak Shing,[18] the Legislative Council could not have intended the Government to have powers to redefine constituencies delineated under the VREO or overturn the whole village representation system by amending any Schedule; and that if and when it is considered necessary or appropriate to amend any Schedule, it should be a matter for the Legislative Council instead of the Government. 

44.Based on the above undisputed and objective evidence, I accept that there was no election held in Cheung Chau throughout the years to return either “village representatives” or “indigenous village representatives”, where the eligibility of both electors and candidates in its elections is based on “lineal descendancy” from indigenous inhabitants.  In nature and in form, the elections in Cheung Chau were held to return “kaifong representatives” (where the eligibility of the electors and candidates is not based on such “lineal descendancy”) and not village representatives.

45.Once understood as such, I also conclude that residents of a Market Town (such as Cheung Chau) and residents of an Indigenous/Composite Village are not in comparable situations in the context of considering their eligibility to be registered as an elector, since the respective elections to elect their respective representatives are simply different in nature and form historically and traditionally.  No question of discrimination therefore arises since they are not comparable.

46.The Impugned Provisions in simply reflecting and incorporating these traditional and historical arrangements in the respective elections that have been held in Indigenous/Composite Villages and Market Towns are hence not discriminatory in law as, for the above reasons, no question of discrimination arises.

C.   CONCLUSION

47.For all the above reasons, historically and traditionally, the election to elect “kaifong representatives” in Cheung Chau (which is a Market Town) is different in nature and form from the election to elect “village representatives” in the Indigenous/Composite Villages.

48.As such, when considering the question of whether there is discriminatory treatment between these elections concerning the eligibility to register as the respective electors, the residents of a Market Town are not in comparable situations with the residents of Indigenous/Composite Villages.  In the premises, no issue of discrimination arises in relation to the different eligibility requirements imposed on these residents respectively.

49.The applicant therefore fails in this judicial review in challenging that the Impugned Provisions (in imposing the More Stringent Requirements) are discriminatory and thus contrary to BL25 and BOR22.  I will dismiss the application.

50.There is no reason why costs should not follow the event.  I make a further order nisi that costs of this application be to the respondent, to be taxed if not agreed.

51.Lastly, I thank counsel for their assistance in this matter.

Mr Valentine Yim, instructed by Lee Chan Cheng, for the applicant

Mr Mike Lui, instructed by Department of Justice, for the respondent