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Chan Wah v Hang Hau Rural Committee And Others

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
CourtCourt of Appeal (Hong Kong)
Judgment Date26 January 2000
Citation[2000] 1 HKLRD 411
Judgement NumberCACV139/1999
Subject MatterCivil Appeal
CACV139/1999 CHAN WAH v. HANG HAU RURAL COMMITTEE AND OTHERS

CACV000139/1999

CACV137/1999 & CACV139/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 137 OF 1999

(ON APPEAL FROM HCAL 112 OF 1998)

_______________

BETWEEN
CHAN WAH Applicant
AND
HANG HAU RURAL COMMITTEE 1st Respondent
SAI KUNG DISTRICT OFFICE 2nd Respondent
CHEUNG KAM CHUEN Intervener

_______________

CACV278/1999 & CACV279/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 278 OF 1999

(ON APPEAL FROM HCAL 28 OF 1999)

_______________

BETWEEN
TSE KWAN SANG Applicant
AND
PAT HEUNG RURAL COMMITTEE Respondent
THE SECRETARY FOR JUSTICE Intervener

_______________

Coram: Hon Chan CJHC, Nazareth VP and Mayo JA

Dates of Hearing : 17, 21, 22 & 23 December 1999

Date of Judgment : 26 January 2000

_______________

J U D G M E N T

_______________

Hon Chan CJHC :

Introduction

1. These are four appeals arising from 2 applications for judicial review. Civil Appeal Nos 137 and 139 of 1999 were lodged by two of the parties in High Court Action No. AL112 of 1998. The other two appeals, Civil Appeal Nos 278 and 279 of 1999, were lodged by two of the parties in High Court Action No. AL28 of 1999. These two sets of appeal involve two aspects of the same issue, that is, the right of non-indigenous villagers to take part in the election of a village representative in the New Territories. These appeals are now consolidated and heard together.

The Parties

2. In AL112 of 1998, the applicant Mr Chan Wah is a non-indigenous villager of Po Toi O Village in the Hang Hau area. He sought relief by way of judicial review against the 1st respondent (the Hang Hau Rural Committee) and the 2nd respondent (the Sai Kung District Office) for not registering him as a voter in the election of a village representative for Po Toi O Village. Mr Cheung Kam Chuen, an indigenous villager, joined as an intervener to oppose the application. On 12 March 1999, Findlay J granted certain declarations in favour of Mr Chan and ordered the two respondents and the intervener to pay costs. The Sai Kung District Office and the intervener are appealing against that decision in Civil Appeal Nos.137 and 139 respectively. There is no appeal by the Hang Hau Rural Committee.

3. In AL 28 of 1999, the applicant Mr Tse Kwan Sang is a non-indigenous villager of Shek Wu Tong Village in the Pat Heung area. He sought relief by way of judicial review against the respondent (the Pat Heung Rural Committee) for not permitting him to stand as a candidate in the election of a village representative for Shek Wu Tong Village. The Secretary for Justice intervened. On 29 June 1999, Cheung J granted certain declarations and orders in favour of the applicant and ordered the Pat Heung Rural Committee and the Secretary for Justice to pay costs. Both are appealing against that decision in Civil Appeal Nos 278 and 279.

4. On 28 June 1999, the Equal Opportunities Commission filed a memorandum with the court seeking permission to be heard in these appeals as amicus curiae on the ground that these appeals involve an issue relating to the provisions of the Sex Discrimination Ordinance, Cap.480 with which the Commission is concerned. That was a time when it was doubtful whether Mr Chan or Mr Tse would be legally represented. Leave was therefore granted for the Commission to participate as an amicus in relation to the issues which touch on the provisions of that Ordinance.

Representation

5. Mr Daniel Fung SC and Mr Johnny Mok appear for the Sai Kung District Office in Civil Appeal Nos 137 and 139 and the Secretary for Justice in Civil Appeal Nos 278 and 279. Mr Clive Grossman SC leading Mr James Colins appear for the intervener in Civil Appeal Nos 137 and 139. The Pat Heung Rural Committee appears by its Chairman Mr Lai Kwok Iu in Civil Appeal Nos 278 and 279. Mr Philip Dykes SC and Mr Stephen Yam act for the applicants in these appeals. Mr Michael Lunn SC appears for the Equal Opportunities Commission. We are indebted to them for their thorough and helpful submissions.

AL 112 of 1998

6. Mr Chan Wah is now 67 years old. His parents had lived in Po Toi O Village for some time. He was born in the village and received primary education there. He has been working as a fisherman in a fish farm in Po Toi O. He married an indigenous villager Madam Cheung Mui in 1957. He has lived in the village all his life.

7. Po Toi O Village is one of the 18 villages in the Hang Hau area which is within the Sai Kung District. Of these villages, 16 are indigenous villages and the remaining 2 are non-indigenous villages. There are to be 26 representatives elected or chosen from these villages to form the Hang Hau Rural Committee. In earlier September 1998, Mr Chan saw a notice posted at the notice board of Po Toi O Village which was issued by the Hang Hau Rural Committee specifying the rules for the election of a village representative. According to rule 4(b) of those rules, he was eligible and so he applied to be registered. His name appeared in the Provisional List of voters which was published by the District Office. There were some objections from indigenous villagers to giving the right to vote to non-indigenous villagers. On 13 November 1998, a vetting committee meeting was held. The village representative, the Chairman and Vice-Chairman of the Hang Hau Rural Committee and 6 indigenous villagers attended. It decided to delete the names of 304 permanent residents from the Provisional List on the ground that they were non-indigenous villagers. On 20 November 1998, Mr Chan noticed from the Final List of voters that his name had been deleted. On 23 November 1998, the Sai Kung District Office wrote to him informing him that his application for registration was rejected on the ground that he was not an indigenous villager. A total of 292 villagers were not registered in the Final List although they fell within the original rule 4(b) of the election rules and some of them were told by the Sai Kung District Office that they were rejected on the same ground. However, Mr Chan's relative, a Madam Yuen Siu Fan who was a non-indigenous villager but married to an indigenous villager, was registered as a voter. As a result of the present proceedings, no village election has been held.

AL 28 of 1999

8. Mr Tse Kwan Sang's parents were brought up in Shek Wu Tong Village which is one of the villages in the Pat Heung area of the Yuen Long District. He was born in the village and was brought up there. He and his family have lived in the village for many years.

9. On 10 November 1998, a notice was issued by Pat Heung Rural Committee announcing the election rules for the election of village representatives which was to be held shortly and calling for the registration of voters. According to rule 1 of those rules, only indigenous villagers over the age of 18 are eligible for registration. Rule 2 provides that married female indigenous villagers must have been living in the village for more than 7 years in order to qualify as voters. Mr Tse said that he was a voter in 1995 but was not qualified to register in the coming election according to the election rules which were published this time. He said that there were about 470 out of nearly 600 villagers in the village who are non-indigenous villagers. And so he and other non-indigenous villagers raised objection with Mr Lai Kwok Yiu, the Chairman of the Pat Heung Rural Committee. A meeting of the villagers was held on 21 November 1998. About 200 villagers attended. It was resolved at the meeting that non-indigenous villagers would be included in the electoral roll. The reason given was that Shek Wu Tong Village was a branched-off village and that non-indigenous villagers had settled there for quite some time.

10. A few days later, Mr Tse and other non-indigenous villagers raised with Mr Lai as to why they were not allowed to stand for election. But Mr Lai said that there was no mention at the village meeting of the right to stand as a candidate. So another meeting was held on 22 December 1998 to discuss this matter. This time, only about 40 to 50 villagers attended. At the meeting, the villagers expressed dissatisfaction at this extra request. They resolved that non-indigenous villagers should be denied even the right to vote which was given at the previous meeting. Mr Tse and the others raised objection with the village representatives and the District Office. Finally, on 12 January 1999, the Pat Heung Rural Commitee confirmed that non-indigenous villagers would be allowed to vote but not to stand for election.

11. An election was held in March 1999 without Mr Tse being allowed to stand for election. It is not clear whether the successful candidate had been approved by the Secretary for Home Affairs pursuant to s.3(3) of the Heung Yee Kuk Ordinance, Cap 1097.

Relief sought in these proceedings

12. One of the grounds of appeal and one of Mr Fung's submissions is that neither the Sai Kung District Office nor the Yuen Long District Office had made any decision against Mr Chan or Mr Tse which can be subject to judicial review. Counsel argues that the Secretary for Home Affairs is only required to approve the successful candidate after the election pursuant to s.3 of the Heung Yee Kuk Ordinance. When the applications for judicial review were lodged, the Secretary had not given his approval yet. Hence there was no decision to be reviewed and the applications were premature.

13. In AL 112 of 1998, the subject matter of Mr Chan's complaint was stated in the application for judicial review to be the "decision of the Hang Hau Rural Committee and the Sai Kung District Office". However...

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