Chan Wai Hong v. The Revising Officer, Mr Symon Wong
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HCAL 105/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 105 OF 2011 ------------------------
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--------------------- J U D G M E N T --------------------- A. INTRODUCTION 1.This is the applicant’s judicial review against the respondent’s decision (“the Decision”) dated 30 September 2011. 2.By way of the Decision, the respondent as the Revising Officer (“the RO”) dismissed the applicant’s appeals against the Electoral Registration Officer’s decision to include the 3rd to 86th Interested parties (the “84 Persons”) in the provisional register of electors for Luk Keng village, Chan Uk (“Luk Keng”). The provisional register was published pursuant to the Village Representative Election Ordinance (Cap 576) (“the Ordinance”). 3.In this judicial review, the applicant asks for:
B. THE BACKGROUND 4.Under the Ordinance, amongst other things, only an indigenous inhabitant of an indigenous village (as identified therein) could be registered as an elector for the purpose of the village representative election of that village. 5.A person is an “indigenous inhabitant” of an indigenous village if (a) he was a resident at that village in 1898, or (b) he is a descendent through the male line of that person[1]. 6.It is common ground that Luk Keng is an indigenous village under the Ordinance. Thus, for the present purpose, only a person who is a descendent through the male line of a person who was a resident at Luk Keng in 1898 is eligible to be registered as an elector for the village representative election of Luk Keng. 7.Further, under the Ordinance:
8.In relation to the 84 Persons, notwithstanding the applicant’s objection, the Electoral Registration Officer decided to include them in the provisional register of electors for the next village representative election of Luk Keng. The applicant objected on the contentions that the 84 Persons are not indigenous inhabitants of Luk Keng. 9.Dissatisfied with the Electoral Registration Officer’s said decision, the applicant appealed against it to the RO under VRE Appeal Nos 24-107 of 2011 (collectively “the VRE Appeals”). The 84 Persons were joined as respondents in those appeals. 10.The hearing of the appeals were conducted before the RO on 20 and 22 September 2011. The parties were represented. At those hearings, the applicant did not challenge the 84 Persons’ position that they were all descendants of Chan Deen Seun Gong 陳殿相公, and that the latter were all descendants of Chan Man Tai Gong 陳萬泰公 (the son of 陳殿相公) and Chan Yam Chau Gong 陳任就公 or Chan Yam Tat Gong 陳任達公 (grandsons of Chan Man Tai Gong 陳萬泰公). 11.It was also undisputed that both Chan Deen Seun Gong 陳殿相公 and Chan Man Tai Gong 陳萬泰公 owned lands at Luk Keng. 12.On 22 September 2011, the RO dismissed the VRE Appeals and held that the 84 Persons should be registered in the list of electors of Luk Keng[5]. 13.The applicant later applied to the RO to review his decision to dismiss the VRE Appeals. 14.The hearing of the review was held on 30 September 2011, where the applicant adduced and relied on certain additional evidence. One of this additional evidence was the complete Chan’s genealogy (“the Genealogy”), which was only partially submitted in the earlier appeals hearing. 15.Based on this complete Genealogy, the applicant no longer maintained his original stance[6] that all the 84 Persons were descendants of either Chan Yam Chau Gong or of Chan Yam Tat Gong, as he did not now accept that 21 out of the 84 Persons who claimed themselves descendants of “叶薰” were descendants of Chan Yam Chau Gong. This is because it was the applicant’s case that the said complete Genealogy did not record the existence of these 21 persons at all (as their names do not appear there), and this fact was not discovered at the appeals hearing. For convenience, I would refer to these 21 persons in this judgment as “the 21 Persons”[7]. 16.After the review hearing, the RO dismissed the review and maintained his earlier decision to dismiss the VRE Appeals, and concluded that the 84 Persons were indigenous inhabitants of Luk Keng as defined under the Ordinance[8]. This is the Decision which is now under challenge. 17.On 23 December 2011, the applicant applied for leave to judicial review the Decision. Leave was granted by this court on 5 March 2012 after hearing. The Court further directed that the Electoral Affairs Commission, the Director of Home Affairs and the 84 Persons be joined as the 1st to 86th Interested Parties. 18.The RO, the Electoral Affairs Commission and the Director of Home Affairs all subsequently indicated to the court that they would take a neutral stance in this application, and have since not taken any steps in it. 19.In relation to the 84 Persons, only the 53rd Interested Party appeared at the hearing of the judicial review through counsel to oppose the application[9]. C. THIS JUDICIAL REVIEW 20.The applicant originally set out six grounds in the Form 86 in support of the judicial review. At the hearing, Ms Cheung for the applicant confirmed to the court that she would only pursue the 4th and 5th grounds to support the application. 21.I would therefore only deal with these two grounds of judicial review as follows. C1. The RO had failed to provide any or any adequate reasons in the Decision 22.This ground arises in the following way. 23.It was the applicant’s main contentions at both the original and review hearings before the RO that the 84 Persons were descendants from ancestors residing at Lo Fong (“羅芳”) village instead of Luk Keng in 1898. The applicant relied mainly on the Genealogy adduced before the RO to support such contentions. In particular, it is the applicant’s case that there are references in the Genealogy relating to some of the ancestors relied on by the 84 Persons which show that they had moved to and settled at Lo Fong long before and also in 1898[10]. This was further advanced by the applicant at the review hearing with the additional evidence. 24.In relation this, the RO said this in his Decision[11]:
25.The applicant now contends that this part of the Decision shows that the RO accepted that “some” ancestors of the 84 Persons had already resided at Lo Fong in 1898 (see the highlighted part of the Decision above). In the premises, the RO should have further identified such ancestors and ruled that the descendants thereof are not indigenous inhabitants of Luk Keng. However, he did not to do so. Instead, the RO went on to conclude (without any further adequate explanations, the applicant further contends) that all the 84 Persons were indigenous inhabitants of Luk Keng (which by definition means that their direct ancestors resided at Luk Keng in 1898). One is thus unable to discern the rationale or reasoning behind such conclusion. 26.In the premises, the applicant says the Decision is challengeable by way of judicial review as the RO had failed to give any or any adequate reasons to explain his decision. 27.I think the applicant is right. I will explain why. 28.There is no dispute that the RO in determining the VRE Appeals and the review has to give adequate and intelligible reasons for his decision, and the failure to do so could amount to a valid ground in judicial review to quash the Decision[12]. 29.On the face of the Decision as quoted above, it appears that the RO did accept from the evidence that as at 1898, “some” of the ancestors of the 84 Persons had already moved to Lo Fong. This part of the decision when read objectively could well mean that some of the 84 Persons’ ancestors had moved to Lo Fong in 1898. If that was the case, then those persons of the 84 Persons cannot fall within the statutory definition of indigenous inhabitants of Luk Keng. 30.Notwithstanding this, the RO still concluded and held in the Decision that all the 84 Persons were indigenous inhabitants of Luk Keng. Although the RO further said in this part of the Decision that as at 1898, some of the ancestors of the 84 Persons also owned lands in Luk Keng[13], this in my view per se (and without further reasons) does not provide any intelligible explanation as to why it has then made all the 84 Persons indigenous inhabitants of Luk Keng. The mere fact that someone owns a piece of land at a place per se does not necessarily show that that person is residing at that place. 31.In the circumstances, without any further reasons or explanations, it is difficult for a reader of the Decision to understand objectively why the RO had come to the conclusion that all the 84 Persons were indigenous inhabitants of Luk Keng, after apparently accepting that some of the 84 Persons’ ancestors had moved to Lo Fong in 1898. This is particularly so as without further explanations:
32.Mr Wong for the 53rd Interested Party contends that the “部份祖先” referred to by the RO who had moved to Lo Fong in 1898 were intended to refer to only those ancestors who were not the direct ancestors giving rise to the descending line to the 84 Persons. The words “部份” are referring to those ancestors other than the direct ancestors giving rise to the descending lines of the 84 Persons. 33.Mr Wong further says this is borne out by the words in the part of the Genealogy relied on by the applicant. These words read “以上是伯德祖部份後裔俱住羅芳”[14]. This phrase relates to the descendancy of the 19th generation which straddles the years 1875 to 1936, and is thus relevant for determining the likely residence of those ancestors as at 1898. “伯德祖” is one of the direct ancestors giving rise to the descending line of some of the 84 Persons. Mr Wong therefore submits that the words “伯德祖部份後裔俱住羅芳” clearly show and refer to the fact that only some of the descendants from “伯德祖”had moved to Lo Fong, and thus the RO’s reference to “部份祖先” in his Decision should clearly mean only those ancestors other than the direct ancestors giving rise to the descending lines of the 84 Persons. 34.I do not agree:
35.For these reasons, I accept the applicant’s submissions that the RO has failed to give any or any adequate reasons to explain and support the conclusion in the Decision. The Decision should thus be quashed and the VRE Appeals be remitted to the same RO for reconsideration. C2. The RO did not consider or resolve the issue of whether the 21 Persons are descendants of Chan Yam Chau Gong (陳任就公) at all 36.This ground is premised on the applicant’s contention at the review hearing on 30 September 2011 that the 21 Persons could not be descendants of Chan Yam Chau Gong, because the complete Genealogy did not record the 21 Persons’ names. It is the applicant’s position that this fact was not discovered at the hearing of 20 and 22 September 2011. 37.The 84 Persons did not adduce any further evidence to respond to the applicant’s additional evidence at the review hearing, although their legal representative had made submissions against the reliability of the applicant’s new evidence and his contentions regarding the 21 Persons. 38.This evidence and the submissions that the 21 Persons cannot be the descendants of Chan Yam Chau Gong were therefore squarely put before the RO at the review hearing. Such evidence in my view is clearly a relevant material that the RO should take into account in coming to the Decision. However, he has not dealt with this in the Decision. Thus, it is unclear as to whether, in reaching his conclusion, the RO had taken this evidence and submissions into account but rejected them, or whether he had failed to take them into account at all. If it is the former, the Decision is again tainted with the failure to give reasons as to why he rejected this evidence. If it is the latter, the Decision is also tainted by an error of law in that the RO had failed to take into account of a relevant material. 39.In the premises, the Decision should also be quashed on this ground. D. CONCLUSION 40.For the above reasons, the applicant is successful in this application. I would quash the Decision and direct that the VRE Appeals be remitted back to the same RO for reconsideration in light of my above reasons in quashing the Decision. 41.I refuse to grant the declaration as sought by the applicant. Whether the 84 Persons or any of them are indigenous inhabitants of Luk Keng is essentially a question of fact in light of the dispute. This court sitting in its supervisory role in judicial review generally would and should not make any determination on the underlying disputed facts. Given my reasons for quashing the Decision, this case is clearly not one which the court should make such a declaration in judicial review. 42.I further make an order nisi that the 53rd Interested Party should pay the applicant the costs of this application, to be taxed if not agreed. Unless any of the parties applies to vary it by summons, this order shall become absolute 14 days from today.
Ms Karen Cheung, instructed by Tang, Wong & Chow, for the applicant The respondent, Department of Justice, was excused Mr Philip Wong, instructed by Raymond Chan, Kenneth Yuen & Co, for the 53rd interested party The 1st and 2nd interested party, Department of Justice, was excused The 3rd to 86th interested party, except 53rd interested party, were not represented and did not appear [1] Section 2 of the Ordinance. [2] Under sections 2 and 51, an Electoral Registration Officer is someone appointed by the Secretary for Home Affairs for this purpose under the Ordinance. [3] Section 17 of the Ordinance. [4] Section 19 of the Ordinance. Under sections 2 and 53, a Revising Officer is a magistrate appointed by the Chief Justice for this purpose. [5] Page 55Q to R of the Transcripts of Hearings. [6] See paragraph 9 above. [7] The names of the 21 Persons are set out at Schedule 2 of the Form 86. [8] Page 80N-O of the Transcripts of Hearings. [9] Although a few of the other 84 Persons also attended court at the hearing, sitting at the public gallery, upon the court’s inquiry, they indicated that they would not participate in the hearing and were contended with the submissions to be made by the 53rd Interested Party’s counsel. The rest of the 84 Persons did not even attend the hearing. Since I was satisfied that the Originating Summons and the notice of hearing had been properly served on them, I proceeded with the hearing in their absence. [10] See pages 21, 32, 48, 64, 84 and 106 (internal page numbers) of the Genealogy. These referred to the 15th to 20th generations of the relevant Chan genealogy, stretching approximately from 1770 to 1963. [11] Page 80 (internal page) of the Transcript of Hearings. [12] Cf: Lo Yin Ming v Appeal Tribunal v Appeal Tribunal (Buildings) [2011] 3 HKLRD 586, paragraph 11 per Lam J (as he then was). [13] “…喺1898年嗰一剎那，嗰一年，仍然有被反對人士嘅部份祖先，係喺鹿頸度擁有土地”. [14] Page 84 (internal page) of the Genealogy. Please refer to CACV34/2013 & CACV169/2013 for the relevant appeal(s) to the Court of Appeal. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment