Chan Wai Hong v. The Revising Officer, Mr Symon Wong

CACV 34/2013 &
CACV 169/2013
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 34  AND 169 OF 2013

(ON APPEAL FROM HCAL NO. 105  OF 2011)

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BETWEEN

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JUDGMENT

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Hon Lam JA (giving the Judgment of the Court):

1.This case concerns the registration in 2011 of certain persons as electors for a village in the New Territories under the Village Representative Election Ordinance Cap 576 [“the VREO”].

2.  Under the VREO, only indigenous inhabitants of an indigenous village can be registered as an elector for the purpose of village representative election of that village.  As defined in section 2 of VREO, a person is an indigenous inhabitant if he was either himself a resident at that village in 1898 or if he is a descendant through the male line of such a person.  

3.  Not later than 27 August each year, the Electoral Registration Officer shall compile and publish a provisional register of electors and a final register shall be published by 20 October each year.

4. A person who is dissatisfied with a decision of the Electoral Registration Officer may appeal to a Revising Officer.

5.In June 2011, 84 persons applied to the Electoral Registration Officer [“ERO”] for registration as electors for Luk Keng (鹿頸) village, Chan Uk. The Applicant objected to such registration on the ground that those 84 persons were descendants of Chan Yam Chau (陳任就), a person who resided at another village, viz Lo Fong (羅芳).  He produced four genealogies to show that Chan Yam Chau died in 1817 and during his lifetime he resided at Lo Fong and so were his descendants. 

6.According to the genealogies, the common ancestor of the Chan clan, Chan Man Tai (陳萬泰), relocated from a village called 歸善縣上坡村 to Lo Fong in the 58^th year of the reign of Emperor Kang Xi (康熙 ).   Luk Keng was established much later during the 5^th year in the reign of Emperor Qian Long (乾隆) by one Chan Shun Tak (陳舜德) and his brothers[1]. 

7.The ERO enquired with 60 out of the 84 persons as regards the objection. Only one of them responded and confirmed that he was a descendant of Chan Yam Chau. The ERO rejected his application for registration because he did not produce further materials to show that his male ancestors had relocated from Lo Fong to Luk Keng.

8. In respect of the others, the ERO registered them as electors because he could not ascertain whether they were the descendants of Chan Yam Chau.  The Applicant appealed to the Revising Officer.  At the appeal, the 84 persons relied on the fact that there were Chinese family trusts in the name of their ancestors Chan Deen Seun (陳殿相) and Chan Man Tai (陳萬泰) who owned land in Luk Keng in 1898.  Chan Deen Seun was the father of Chan Man Tai.  Chan Man Tai was the grandfather of Chan Yam Chau. Chan Man Tai died in the 25^th year of the reign of Emperor Qian Long (乾隆) (1730) at the age of 90.  Chan Deen Seun died in 1710. 

9.On 22 September 2011, the Revising Officer dismissed the Applicant’s appeal.  The Applicant sought a review and after the review, the Revising Officer maintained his decision on 30 September 2011.

10.  The Applicant applied for a judicial review against the decision of the Revising Officer.  The judicial review was heard by Au J [“the Judge”].  By a judgment of 19 December 2012, the Judge quashed the decision of the Revising Officer and “remitted” the matter to the Revising Officer for reconsideration in light of his judgment.

11.In his judgment, the Judge considered that the Revising Officer had omitted to deal with a crucial issue in his decision.  The issue is who was/were the male ancestor(s) of the 84 persons and was/were alive and resided at Luk Keng in 1898.

12.Two of the 84 persons, viz. the 3^rd and 53^rd Interested Parties below, appeal against the Judge’s decision.  They are represented in this appeal by Mr Philip Wong.

13.The Applicant resists the appeal and he is represented by Ms Karen Cheung.

14.Though Mr Wong advanced five grounds of appeal before us, in substance the real issues are: (a) whether the issue identified by the Judge is a crucial issue which the Revising Officer should have dealt with; and (b) whether the Revising Officer had adequately dealt with that issue.

15.Before we discuss these real issues, we would mention Mr Wong’s contention that the Judge had confused his disagreement with the reasons given by the Revising Officer as the lack of adequate reasons being given by the Revising Officer. We do not think the Judge made such error. The Judge was well aware that in a judicial review the court is not sitting as an appellant tribunal, see para 41 of the judgment.  It is not disputed that the Revising Officer had a duty to give adequate reasons, see para 28 of the judgment.  Even in a judicial review, in testing whether adequate reasons had been given, the Judge had to consider what were the issues in the proceedings and assess whether the reasons given were adequate in that light. For that purpose, the Judge had to ask himself what were the crucial issues in the proceedings before the Revising Officer and whether he had given reasons in those regards.  He concluded that the Revising Officer did not. There was no confusion on the part of the Judge as to the role of the court in a judicial review as opposed to an appeal.

16.Mr Wong also queried why the 3^rd Interested Party should be affected by the question of lineage from Chan Yam Chau.  It is correct the 3^rd Interested Party was not one of the 21 persons in respect of whom the Applicant withdrew his admission regarding the 84 persons’ lineage from Chan Yam Chau at the review hearing.  However, as we shall explain below, the question of lineage is relevant for all 84 persons and it is not merely a question of lineage from Chan Yam Chau.

17.We also see no merit in Mr Wong’s challenge to the locus standi of the Applicant.  Plainly his interest would be affected by the decision of the Revising Officer in terms of the potential electorate in an election in which he is an elector. Nothing more need to be said in this regard.  

18. Coming back to the real issues, given that Chan Man Tai and Chan Deen Suen had long passed away by 1898, it is not enough for the 84 persons to identify themselves as descendants of these two gentlemen. Under the definition for indigenous inhabitant in the VREO, a person must either himself reside at the relevant indigenous village in 1898 or be a descendant through the male lineage of such a person.  Thus, it is important to ask who this person was in respect of these 84 persons.

19.In the reasons given by the Revising Officer in the appeal and the review, he had not identified such indigenous ancestor in respect of these 84 persons.  It is not possible to hold that they must have an ancestor who resided at Luk Keng simply because there were land held in the name of the family trusts of Chan Man Tai and Chan Deen Suen at Luk Keng when the evidence before him shows that the descendants of these two gentlemen had scattered over different areas, some in Luk Keng, some in Lo Fong, and some elsewhere.

20. Mr Wong submitted that the Revising Officer was entitled to take account of the low mobility in 1898 to draw an inference that those who owned the land must be residing nearby.  But this cannot assist when the land in Luk Keng were held in the names of two gentlemen who had long passed away.

21.Further, the Revising Officer seemed to be labouring under the mistaken view that those in the Chan clan came to Luk Keng first before some of them moved to Lo Fong.  As we have seen, according to the genealogy, the correct position was that they had first settled at Lo Fong and later on some of them moved elsewhere, including Luk Keng.

22.Mr Wong accepted that his clients were the descendants of Chan Yam Chau.  That being the case, the genealogy shows that their ancestors resided at Lo Fong.  The ownership of land at Luk Keng by their great grandfathers could not contradict such evidence.

23.The Revising Officer did not suggest that he rejected the evidence in the genealogy nor did he give any reason for so doing.

24. In the circumstances, the Judge was correct in quashing the decision of the Revising Officer.

25. However, we do not see any need to require the Revising Officer to reconsider the matter because the register would be compiled again every year.  It would be unrealistic to expect the Revising Officer to remember the evidence taken before him in 2011 and the matter would have to be processed afresh in any event.  What we propose to do is to quash the decision of the Revising Officer and the consequential inclusion of these 84 persons in the register of electors.  There is not going to be any election of village representative for Luk Keng this year.  If any of the 84 persons wish to have their names included, they can make fresh applications to the ERO bearing in mind what we have said in this judgment.  Those applications can take their own courses.  We trust the ERO and the Revising Officer would take this judgment into account in processing those applications.

26.Subject to what is said at the last paragraph, we shall dismiss the appeal with costs.  The 3^rd and 53^rd Interested Parties shall pay the costs of the Applicant, such costs are to be taxed if not agreed.  As the 3^rd Interested Party and the Applicant are on legal aid, their own costs shall be taxed in accordance with the Legal Aid Regulations.

Mr Philip Wong, instructed by Raymond Chan, Kenneth Yuen & Co, for the Appellant (53^rd Interested Party)(CACV 34/2013).

Mr Philip Wong, instructed by Leung & Lau, assigned by Director of Legal Aid, for the Appellant (3^rd Interested Party)(CACV 169/2013).

Ms Karen Cheung, instructed by Tang, Wong & Chow, assigned by Director of Legal Aid, for the Respondent (Applicant) in both cases.

Department of Justice, for the Respondent (the Revising Officer) and the 1^st & 2^nd Interested Parties in both cases, is excused.

[1] Appeal bundle p.108