Ng Shiu Hung v. Sai Kung District Officer

HCAL002683/2000

HCAL 2683/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2683 OF 2000

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Coram Hon Chung J in Court

Date of Hearing: 2 April 2001

Date of Handing Down Judgment: 26 April 2001

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J U D G M E N T

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Introduction

1. This is an application for judicial review, leave to do so has been given on 19 December 2000. The decision under challenge herein was made by the Secretary for Home Affairs ("the Secretary") on 28 September 2000 for cancelling the applicant's appointment as a manager of the Ng Shing Tat T'so ("the T'so") (purportedly, so the applicant says) under section 15 of the New Territories Ordinance, Cap. 97 ("s. 15").

Background Facts

2. According to documents supplied by the applicant to the respondent, on 13 June 1993 he was selected by members of the T'so (of Nga Tsin Wai Village ("the Village")) as its manager.

3. In March 1994, the Village applied to the respondent for the approval and registration of the applicant and a Mr Ng Kwok Keung as the T'so's managers. In the same month, the respondent asked 2 other managers of the T'so to obtain written consent from members of the T'so to substantiate the said appointments. In March 1994 and February 1996, the said 2 managers submitted written consent from some of the T'so members for such purpose.

4. Further, in about March 1996, acting in accordance with the normal procedure for the approval of the appointment of T'so managers, the respondent posted notices in the Village and at the Sai Kung District Office. Up to about 15 April 1996, no objection to the appointments was received by the respondent. Subsequently, the respondent approved the applicant's appointment in 1996.

5. In about November 1997 and February 1998, the respondent received complaints from some of the T'so members alleging that the election of the applicant and Mr Ng Kwok Keung was unlawful and some of the documents supporting the election were forged. In about March 1998, the respondent carried out investigation into the complaints. On 11 March 1998, a senior liaison officer of the respondent, Mr Ho Ying Shing ("Ho"), interviewed the applicant and 2 other T'so managers. Ho revealed the allegation of forged documents to them but they denied the allegation.

6. From about March to May 1998, the respondent's investigations continued and legal advice was sought from the Department of Justice.

7. At about the same time, the Independent Commission against Corruption ("ICAC") also conducted similar investigations relating to the applicant's appointment. This was concluded by ICAC in about August 1999. An investigation report was sent by ICAC to the respondent. ICAC sent a letter to the applicant informing that investigations had been concluded and no criminal charge would be laid against him.

8. According to the affirmation of Mr Yau Sai Yan Simon, the Sai Kung District Officer, in about August 1999, he preliminarily considered that there was good cause to cancel the appointment of the applicant and Mr Ng Kwok Keung based on the ICAC report, the District Officer's own investigations and the legal advice from the Department of Justice. The basis of that view was some of the signatures on the supporting documents previously submitted to the District Office relating to the appointment were forged; the supporting documents were accordingly considered to be unreliable. As a result, the appointment might not truly reflect the wishes of the T'so members of the First and Fourth branches of the T'so.

9. On 16 December 1999, Ho interviewed the applicant and 2 other T'so managers and informed them of the above matters.

10. According to the applicant, at the interview, Ho informed him the District Office had some information unfavourable to him. Ho asked the applicant to resign voluntarily or the respondent would cancel his appointment. According to Ho, the purpose of the interview was to brief the applicant of the result of the ICAC investigations. He also informed the applicant that based on the ICAC report and the legal advice obtained, the District Officer initially decided to cancel his appointment and that of Mr Ng Kwok Keung. When asked by the applicant, Ho revealed that according to the ICAC investigations, some of the signatures on the supporting documents were forged but Ho refused to disclose the identities of the complainants.

11. According to a file note prepared by a staff of the respondent,

"... [the applicant and 3 other people] ... were interviewed by [Ho] in our office on 16.12.99 ...

... They were clearly briefed of the result of ICAC's investigation and D of J's advice on the appointment of Managers of the First and fourth Branches. Based on ICAC's report and D of J's advice, DO(SK) decided to cancel the appointments of [the applicant] and Ng Kwok-keung. Considering the possible embarrassment suffered by the Managers, they were allowed to resign voluntarily ... In case no resignation is received by then, DO(SK) will cancel their appointments, in accordance with S.15 of NTO (Cap. 97), by issuing formal letters and public notices ...

[The applicant] questioned our grounds and evidence for dismissing him and urged us to disclose the identity of the complainant. We revealed to them that according to ICAC's investigation, some of the signatures on the supporting documents ... were forged. The supporting documents were believed to be unreliable. It established a good cause to cancel their appointments. As regard to the identity of the complainant, we firmly refused to disclose ... [The applicant] admitted that he understood what we said. But he still insisted ICAC's accusation was of no grounds and was unfair to him ...

... All the Managers were very angry and denied having forged any signatures of TSO members. But LEUNG Sik-lun exposed the fact that they knew some of the members had signed the supporting documents for some other members as they could not be contacted at the time. He regarded it as traditional practice. We strictly stated that it was illegal and unacceptable. ... " (exhibit "HYS-1").

12. Correspondence subsequently passed between the applicant's solicitors and the respondent. To summarize, the applicant requested for details of the allegations and all relevant evidence or information relating to them but the respondent only disclosed the existence of the ICAC report. On 20 April 2000, the respondent informed the applicant of the grounds on which the respondent intended to cancel his appointment and asked him to give explanations on or before 13 May 2000 or else his appointment would be cancelled. On 12 May 2000, the applicant denied the allegation of forged signatures and asked for particulars.

13. On 28 September 2000, the respondent decided to cancel the applicant's appointment.

The Issues Raised: (1) Appearance of Bias

14. It would appear from para. 8 to 11 of the applicant's skeleton arguments that reliance is only placed on apparent bias.

15. It is unclear if the applicant also argues that there was actual bias on the respondent's part. If actual bias is relied on by the applicant, there is no evidence to support it. The Sai Kung District Officer, Mr Yau, deposed that only a preliminary view was formed before the applicant's interview by Ho.

16. Reliance has been placed by the applicant on the following matters:-

(a) Mr Yau stated in his affirmation that the T'so's managers including the applicant were extremely uncooperative in refusing to release the contact details of the T'so members to enable the respondent to interview the members;

(b) the respondent sought legal advice from the Department of Justice without allowing the applicant a chance to explain or confront the evidence collected by the respondent;

(c) according to Ho's affirmation, Ho informed the applicant that based on the ICAC report and the legal advice, the respondent "initially decided" to cancel the applicant's appointment as manager. Ho also asked the applicant to resign;

(d) the file note regarding the applicant's interview prepared by the respondent's staff clearly shows that the respondent had in fact decided before the interview he would cancel the applicant's appointment if the applicant should refuse to resign.

Based on the above, the applicant asked the court to reject Mr Yau's statement that he had only formed a preliminary view before the applicant's interview. I do not find that his statement should be rejected for the following reasons.

17. The relevant parts of s. 15 are in the following terms:-

"Whenever any land is held from the Government under lease or other grant ... in the name of a clan, family or t'ong, such clan, family or t'ong shall appoint a manager to represent it. ...

... Every such appointment shall be reported at the appropriate New Territories District Office ... and the Secretary for Home Affairs ... shall, if he approves thereof, register the name of the said manager who shall, after giving such notices as may be prescribed, have full power to dispose of ... the said land ...

... The Secretary for Home Affairs may on good cause shown cancel the appointment of any manager and select and register a new manager in his place ... " (emphasis supplied).

For the purpose of this application, 2 relevant matters are obvious. One, s. 15 provides that a t'so manager is the t'so's representative; in other words, he is its agent. Two, s. 15 provides that the Secretary has power to cancel the manager's appointment on good cause being shown.

18. No distinction has been made between the Secretary and the respondent by the parties herein: see, for example, para. 14 of Yau's affirmation and para. 13 of the applicant's skeleton arguments. It is clear from the terms of s. 15 that the power to cancel a manager's appointment rests with the Secretary. However, he may only do so "on good cause shown". In order for the Secretary to properly consider whether he should exercise his power of cancellation under s. 15, he must satisfy himself as to whether "good cause" to do so has been shown.

19. In my view, the respondent has done exactly just that in this case. To suggest that the respondent should not have:-

(1) investigated the matter,

(2) considered evidence collected by, or placed before, him,

(3) sought legal advice on the above matters, and/or

(4) formed any view on the subject,

without first giving a manager whose appointment may be cancelled a chance to be heard, would be to turn s. 15 on its head. As stated above, the Secretary can only properly consider whether, and if so how, to exercise his power under s. 15 after he has considered whether "good cause" has been shown. That cannot be correctly done without undertaking one or more of the 4 matters set out earlier in this paragraph.

20. In this case, the Secretary, after due investigations, has concluded that a case has been made out and, based on that, has formed a preliminary view. It is only fair and proper that he (through Ho) then interviewed the applicant, informed him of the gist of the case against him, and in effect gave him a chance to deal with the matter. Not only is there nothing wrong with such course of action, it is something to be commended.

21. The applicant's reliance on Mr Yau's statement that the applicant was uncooperative as a matter showing the respondent was biased has no merit. Mr Yau was merely setting out the history of the matter in his affirmation when he mentioned this. There is no basis for thinking that he based on this to find that "good cause" for cancelling the applicant's appointment has been shown, or that Mr Yau was influenced by this when he was considering whether "good cause" has been shown.

22. As has been stated above, there is nothing wrong with seeking legal advice on the matter without first giving the applicant a chance to be heard. This was part of the respondent's investigations which, as stated above, the respondent was entitled to undertake under s. 15. The reliance on the respondent seeking legal advice before the applicant's interview as a matter showing apparent bias therefore also has no merit.

23. The reliance on the file note regarding the applicant's interview is misconceived. The file note was not prepared by Mr Yau or Ho but by one of the respondent's staff. In fact, a hand-written note (apparently made by the District Officer or the senior liaison officer) above the file note states that:-

"Let's wait till 8/1/2000 to see what happens before deciding on the way ahead".

If anything , this rather shows that no definitive decision has been made at the time.

24. Lastly, the applicant's reliance on the part of Ho's affirmation stating that an initial decision has been made by the respondent cannot advance the applicant's case. This part of Ho's affirmation in fact confirms the respondent's case that no firm view has been reached by the respondent at the time of the interview by Ho.

The Issues Raised: (2) Unfair Conduct/Failure to Supply Particulars

25. Before dealing in detail the arguments raised by the applicant, it is necessary to bear in mind the following general principle relating to the rules of natural justice. The right of a person to be informed of the case he has to meet is ultimately based on the rules of natural justice.

The rules of natural justice are flexible:-

"The so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expressed the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates": Lloyd v. McMahon [1987] AC 625,702;

"The concept of fairness is itself flexible and should not be subject to the court laying down rules or steps which have to be followed. The question in each case is whether the commission has adopted a procedure so unfair that no reasonable commission or group would have adopted it, so that it can be said to have acted with manifest unfairness. Provided each party has its mind brought to bear on the relevant issues it is not in my judgment for the court to lay down rules as to how each group should act in any particular inquiry": R v. Monopolies Commission, exp Brown plc [1987] 1 WLR 1235, 1242 per MacPherson J.

26. The duty which the applicant alleges the respondent has failed to discharge is the alleged duty to sufficiently disclose the particulars and evidence relating to the forgeries referred to in the ICAC report.

27. I agree with the respondent that what needed to be disclosed to the applicant is the gist of the case against him, namely, that some of the signatures were forged. This is particularly so when there is another interest to be taken care of, namely, the need to keep the source of the information confidential in order to protect the identity of the informant(s) . As has been pointed out in Wade & Forsyth: Administrative Law (2000) 8th Ed., p. 509:-

"In some administrative situations there are limits to the broad principles [regarding "the right to know the opposing case"] stated above. The court must always consider the statutory framework within which natural justice is to operate, and a limit may sometimes necessarily be implied. What is essential is substantial fairness to the person adversely affected. But this may sometimes be adequately achieved by telling him the substance of the case he has to meet, without disclosing the precise evidence or the sources of information. The extent of the disclosure required by natural justice may have to be weighed against the prejudice to the scheme of the [statute] which disclosure may involve ... ".

28. Although the applicant contends that a manager's financial position may perhaps be affected if he is removed (referring to Li Tang-shi v. Li Wai-kwong [1969] HKLR 367, 387), the link between a manager's financial position and his appointment is certainly not apparent in the provisions of Cap. 97. The applicant has not explained how his financial position will be affected when he was removed as the T'so's representative.

29. In any event, from the way in which the persons confronted with the allegation (including the applicant) responded, it does not appear that they were unable to understand the case against them, nor did they appear to be unable to respond. In the file note it was stated:-

"... [The applicant] admitted that he understood what we said. ... All the Managers were very angry and denied having forged any signatures of TSO members. But LEUNG Sik-lun exposed the fact that they knew some of the members had signed the supporting documents for some other members as they could not be contacted at the time. He regarded it as traditional practice. We strictly stated that it was illegal and unacceptable ... ".

30. Even if somehow the respondent can be regarded as having technically failed to supply sufficient particulars, from the way in which the matter was responded to (as set out in the file note quoted above), no substantial injustice or prejudice was caused to the applicant. This part of the application ought to be dismissed as a matter of discretion: see, for example:-

(a) R v. Chief Constable of the Thames Valley, exp Cotton [1990] 77 LGR 698, 695;

(b) Malloch v. Aberdeen Corporation [1971] 1 WLR 1578, 1595;

(c) Glynn v. Keele University [1971] 1 WLR 487, 496G-97A;

(d) R v. Aston University Senate, exp Roffey [1969] 2 QB 538, 554E-G.

Personal Data (Privacy) Ordinance, Cap. 486

31. The applicant also argues that the respondent is liable to disclose information under Cap. 486. The point has not been raised by either party but it is highly doubtful whether particulars and evidence relating to the forged signatures are the applicant's "personal data". In any event, the respondent relies on s. 58(1)(d) of Cap. 486 which reads:-

"... Personal data held for the purpose of ...

the prevention, preclusion or remedying (including punishment) of unlawful or seriously improper conduct, or dishonesty or malpractice, by persons ...are exempt from the provisions of data protection principle 6 and section 18(1)(b) where the application of those provisions to the data would be likely to:-

(i) prejudice any of the matters referred to in this subsection; or

(ii) directly or indirectly identify the person who is the source of the data".

"Principle 6" (access of personal data) referred to in s. 58(1)(d) can be found in Schedule 1 of Cap. 486. In short, it provides that a data subject shall be entitled to request access to personal data. There is no need to elaborate the matter save to say that (insofar as it is necessary to do so) the respondent is clearly entitled to rely on this exemption regarding the applicant's request for data under Cap. 486.

32. The applicant refers to s. 58(2) of Cap. 486 which provides:-

"Personal data are exempt from the provisions of data protection principle 3 in any case in which-

(a) the use of the data is for any of the purposes referred to in subsection (1) (and whether or not the data are held for any of those purposes); and

(b) the application of those provisions in relation to such use would be likely to prejudice any of the matters referred to in that subsection ... ".

Further to the matters stated earlier, the applicant's purpose in asking for the evidence and particulars is to enable him to meet the respondent's case. In these circumstances, I do not consider that this provision (which is related to the use of (which includes the disclosure of) personal data) can assist the applicant in this application.

The Issues Raised: (3) Error of Law/Wrong Burden of Proof

33. The respondent's letter (in Chinese) dated 20 April 2000 is relied upon by the applicant. The parts relevant to this aspect are the respondent's statements to the effect that some of the signatures on the supportive documents supplied to the respondent were forged and thus the integrity of these documents is doubtful. For those reasons, the respondent intimated that the applicant's appointment did not reflect the wishes of the fourth branch of the T'so. The respondent informed the applicant that if he had any reasonable explanation to the foregoing, he should provide it in writing before 13 May 2000 otherwise his appointment would be cancelled pursuant to s. 15.

34. The applicant argues that by this letter the respondent has erroneously cast the burden of proof on him. The applicant refers to the following passages in Li Tang-shi v. Li Wan-kwong [1969] HKLR 367:-

"Mr. Sweetman [the District Officer] told me that he was not satisfied with the series of delays on the part of the lawyers of the plaintiff and indeed thought that these were intentional ... He also thought that it was for the plaintiff to show cause why she should not be removed rather than for the first defendant to prove a case against her ... " (p. 386);

"... there seems to have been a misconception as to the burden of proof. It was not for the plaintiff to exculpate herself before a hearing. She denied the charges through her solicitors and that in my view was all that was necessary at that time. The matter should then have been thrashed out at a hearing in the presence of both parties. By his action in dealing with the matter there and then [and refusing counsel's request for an adjournment when the meeting was for] and in not granting an adjournment the plaintiff was precluded from giving her version of the facts" (p. 387).

35. The facts of Li Tang-shi can be summarized as follows. Following the death of the other 2 trustees, the plaintiff therein became the sole trustee of a piece of New Territories land. The first defendant applied to the District Officer for a ruling that he had an interest in the land and it could not be sold without his consent. The District Officer refused that application but ruled that he was the heir to the donor of the trust land. The first defendant later applied for the plaintiff's removal. Counsel was engaged by the plaintiff and he arranged a meeting with the District Officer to obtain the notes of the earlier proceedings and ascertain the reason for the earlier decision of the District Officer that the first defendant was the heir. When the Judgment referred to "dealing with the matter there and then", the court was referring to the said meeting when the District Officer decided that it should instead be a hearing regarding the plaintiff's removal as a trustee.

36. The facts and issues in Li Tang-shi were very different from those herein. The court's above observations have to be read in the context in which they were made. The case which the plaintiff has to meet therein was whether the first defendant was the donor's heir. That would naturally be a matter for the first defendant to prove and not one for the plaintiff to disprove.

37. I also agree with the respondent's argument that it is factually incorrect for the applicant to contend that the respondent's letter amounted to shifting the burden of proof to the applicant. All that the letter did was to afford an opportunity to the applicant to present his case. This, as has been stated above, is entirely correct.

The Issues Raised: (4) Ultra Vires Section 15, Cap. 97

38. The applicant's arguments under this head can be summarized as follows:-

(a) "good cause" in s. 15 has not been defined. This part of s. 15 should not be enforced by court because to cancel a manager's appointment is a kind of penalty and it is trite law that a person should not be penalized except under clear law;

(b) under Chinese customary law, a manager is appointed for life and the cancellation power under s. 15 should not be enforced by court because this is contrary to Chinese customary law;

(c) according to s. 15, after the respondent has cancelled a manager's appointment, the respondent has to select and appoint another person as the new manager under that provision. This will usurp the T'so's function; a T'so is permitted by law to run its own affairs: Chan Choy Fong v. Secretary for Home Affairs [1997] 4 HKC 122;

(d) "good cause" under s. 15 is intended to apply to maladministration or misappropriation of T'so properties by a manager. It does not include unrepresentativeness of a manager.

39. The above arguments will be dealt with below in the same order.

Good Cause

40. I disagree with the applicant's argument that the cancellation of a manager's appointment is penal in nature. Further, even if it were penal in nature, I disagree with his argument that s. 15 is anything but clear law. In many penal statutes, phrases like "reasonable excuse" or "due diligence" have been used. I am not aware of any jurisprudence which decided that such phrases are so unclear as to render the penal statutes in question incapable of enforcement.

41. In relation to the alleged inconsistency between s. 15 and Chinese customary law (namely, a t'so manager is allegedly appointed for life), Chinese customary law is a matter of fact which requires proof by way of expert evidence. No such evidence has been adduced in this application. Even if the applicant can somehow establish a basis for this argument without expert evidence, I do not consider that an express statutory provision can be rendered unenforceable merely because of an inconsistency between it and Chinese customary law.

42. In relation to the respondent's power under s. 15 to select and appoint another manager if the original appointment has been cancelled, I do not consider this can affect the enforceability of that provision. The selection and appointment process needs not necessarily be inconsistent with the way in which a t'so's affairs is being conducted, for example, it is possible the respondent may select the new manager in accordance with (or taking into account) the wish of the t'so members.

43. I disagree with the applicant's argument that "good cause" in s. 15 can only refer to maladministration or misappropriation of t'so properties by a manager. Read in its entirety, it is clear that the representativeness of a manager is a matter important to the respondent's decision regarding the cancellation of a manager's appointment.

44. As to what evidence is sufficient for a decision-maker to find that a manager lacks representativeness is not a matter relevant to this aspect of the application and this will be dealt with under the heading "The Issues Raised: (6) Irrational Decision".

45. By reason of the above matters, there is no merit in this part of the application.

Power to Cancel Appointment

46. It is also contended by the applicant that to allow the respondent to cancel a manager's appointment pursuant to s. 15 may bring about an absurd result. The new manager selected and appointed by the respondent may have even less representativeness than the one whose appointment has been cancelled. I have already found that the selection and appointment exercise may not be inconsistent with the established practice of appointing a t'so manager in the New Territories. In any event, the respondent's above argument is about a possibility in theory only.

47. The applicant also argues that the selection of a new manager may take a long time and involve large amounts of public fund. That may or may not be true but I do not see how practical difficulties of time and expenses would enable a court to refuse to recognise the validity of an express statutory provision.

48. The above arguments of the applicant are therefore rejected.

The Issues Raised: (5) Legitimate Expectation

49. The applicant contends that there is a legitimate expectation on his part that "... the respondent accepted [the applicant's] representativeness and would not cancel his appointment solely on the ground that he was not representative without giving him first a hearing": see para. 49 of the applicant's skeleton arguments.

50. It is unclear whether the emphasis in the quoted sentence is placed on:-

(a) not cancelling the applicant's appointment "solely on the ground that he was not representative"; or

(b) not cancelling the applicant's appointment "without giving him first a hearing".

In either case, I do not consider there is any merit in the contention.

51. In order for a legitimate expectation to be created, there must be a representation (whether by way of a "promise" or "established practice") on the respondent's part: see Wade & Forsyth, pp. 494 to 500, especially pp. 495 to 496; de Smith, Woolf & Jowell: Judicial Review of Administrative Action (1995) 5th Ed., para. 8-050 to 8-057. There is simply no such evidence.

52. The applicant argues that the representation was created by the respondent's following conduct:-

(1) the respondent advised the applicant what he needed to do to obtain approval for appointment;

(2) the respondent investigated into the applicant's application for appointment from 1993 to 1996 before approving his application;

(3) the respondent's approval of the applicant's application means that the respondent accepted the applicant's representativeness.

53. None of the above (whether singularly or cumulatively) can properly be regarded as representation which can ground a legitimate expectation that a manager's appointment will not be cancelled, or that it will not be cancelled without a hearing.

54. Further, it is the respondent's case in the present application that the appointment was approved as a result of the forged supportive documents supplied by the applicant. I do not see how an approval brought about in such a way can amount to a representation which can create a legitimate expectation if the forgery (which brought about the so-called representation) is later discovered.

55. Insofar as the applicant argues that the legitimate expectation is that he should not be removed as a manager merely because he was found not to be representative of the T'so, this in effect is a repetition of his arguments under the headings "The Issues Raised: (4) Ultra Vires Section 15, Cap. 97" and "The Issues Raised: (6) Irrational Decision".

56. Insofar as the applicant argues that the legitimate expectation is that he should not be removed as a manager without first being given a hearing, this in effect is a repetition of his argument under the heading "The Issues Raised: (2) Unfair Conduct/Failure to Supply Particulars".

57. The said 3 headings have been dealt with herein and will not be repeated here.

58. Accordingly, there is no merit in this contention.

The Issues Raised: (6) Irrational Decision

59. The applicant's argument relevant to this heading would appear to be inconsistent with his argument that "good cause" under s. 15 does not include unrepresentativeness. At para. 50 of the applicant's skeleton arguments, he said:-

"The appointment of a manager is by 'co-option and consensus' and the New Territories Ordinance requires the Land Officer to ascertain whether the members approve the choice of a manager. He does this by posting notices inviting objection to the appointment in the ancestral temple and other public places. After one month, if there is no objection, the consent of all the members is inferred: Chinese Customary Law ... by Berlinda Wong Sheung-yu [1990] HKLJ 13 @19-20" (emphasis supplied).

60. Despite his earlier argument regarding "ultra vires", the applicant appears to accept under this heading that the respondent could properly consider whether the applicant's appointment has the consent of the T'so members. His complaint here is that the respondent's decision is Wednesbury unreasonable because:-

(1) out of the 74 voting members of the T'so, there is only evidence that 4 members did not sign the consent letter (see para. 51 of the applicant's skeleton arguments which refers to para. 10 of Yau's affirmation);

(2) the supporting documents show that over 70% of the members consented to the applicant's appointment (see para. 53 of the applicant's skeleton arguments which refers to para. 6 of Yau's affirmation);

(3) there is no evidence, and it is not the respondent's case, that the applicant forged the signatures, or knowingly made use of them.

61. Point (1) above is not an accurate summary of para. 10 of Yau's affirmation which states:-

"The result of the interview [of 10 T'so members by the respondent] was that in respect of the minutes of meeting ... , only the writer of the minutes ... acknowledged attendance of the meeting, his signature and the accuracy of the minutes. All the other 9 members stated that they had not received any oral or written notice ... and did not attend the meeting. 2 members said they put their signature [sic] on the minutes later ... They were asked to put their signatures on the minutes when they were casually having tea ... in a Chinese restaurant. ... 5 members said they were asked to put their signatures at the poll counting ... The remaining 2 members said they had never put their signatures on the minutes. Regarding the written consent submitted ... from the face of the record, 8 out of 10 persons signed a consent letter. The result of the interview was that 4 of the 8 persons had not signed any consent letter".

62. Point (2) above also does not accurately set out the matter. Para. 6 of Yau's affirmation merely sets out the history of the applicant's application for approval of his appointment. Mr Yau was only stating that the respondent acted on the faith of documents which on their face purported to evidence consent from over 70% of the T'so members. He did not accept in his affirmation that that was the fact. Indeed, when this is read in its proper context (especially together with para. 7 to 10 and 12 to 14 of his affirmation), the contents of those documents are no longer accepted by him in his affirmation.

63. I find that on the materials before the respondent, the decision to cancel the applicant's appointment was one which a reasonable decision-maker properly directed on the law could have reached.

64. I agree with the respondent that it is unnecessary in the context of this case for the respondent to be satisfied that it was the applicant who forged the signatures or he knowingly made use of them. The ground for cancelling his appointment was that the supportive documents had been shown to be unreliable and could not properly be used as evidence of his representativeness as an agent of the T'so. It was not that the applicant has been found to have forged documents or knowingly used forged documents.

65. The applicant also mentioned in this part of his skeleton arguments that the burden of proof lies with the respondent. This argument has already been considered above and will not be repeated here. For the same reasons set out above, this cannot advance this part of the applicant's case.

Other Matters

66. One relief prayed for in the Form 86A herein is in essence the discovery of the respondent's documents in aid of this application. At the beginning of the hearing, applicant's counsel confirmed that this was no longer pursued by the applicant. Accordingly, this part of the application need not be dealt with herein.

Conclusion

67. By reason of the matters above, this application is dismissed.

Costs

68. There will be a costs order nisi pursuant to RHC Ord 42 r 5B(6) that costs of the application be paid by the applicant to the respondent to be taxed if not agreed.

Representation:

Mr Tong Chung Kun, instructed by Messrs Peter W K Lo & Co, for the Applicant

Mr Kwok Siu Hay, instructed by Department of Justice, for the Respondent