Constitutional and Administrative Law Proceedings1998

CHAN WAH v. HANG HAU RURAL COMMITTEE AND ANOTHER

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CACC195/1973CHAN WAH v. THE QUEEN
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CACV137/1999CHAN WAH v. HANG HAU RURAL COMMITTEE AND OTHERS
CACV139/1999CHAN WAH v. HANG HAU RURAL COMMITTEE AND OTHERS
DCCJ431/1972LI LA-FON v. CHAN WAH

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34367-ET-1999-03-12

CHAN WAH v. HANG HAU RURAL COMMITTEE AND ANOTHER and CHEUNG KAM CHUEN (Intervener)

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HCAL000112B/1998

1998, No. AL112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BETWEEN
	CHAN WAH	Applicant

	AND

	HANG HAU RURAL COMMITTEE	First Respondent

	SAI KUNG DISTRICT OFFICE	Second Respondent

	CHEUNG KAM CHUEN	Intervener

Coram: The Hon Mr Justice Findlay, in Court

Date of hearing: 9 march 1999

Date of handing down of judgment: 12 March 1999

______________

JUDGMENT

______________

1. This is an application under Order 53 seeking relief in respect of a decision by the first and second respondents not to register the applicant as a voter for the Hang Hau Po Toi O Village Representative Election in March 1999.

2. The applicant was born in Po Toi O village in 1932. He has lived and worked there ever since. He is not descended through the male line from a person resident in the New Territories in 1898. This apparently is the qualification necessary to be accepted as an "indigenous villager". He is, however, married to an indigenous villager.

3. In September 1998, the applicant saw a notice issued by the first respondent relating to the election of the Po Toi O Village Representative. According to the Election Rules issued by the first respondent, the applicant was eligible to vote in the election. The applicant submitted his application to be registered as a voter to the second respondent. His name was published in a provisional list of voters, but was excluded from the final list. By a letter dated 23 November 1998 by the second respondent, the applicant was told - "You have submitted to our Department the application form in respect of [the Hang Hau Po Toi O Village - Village Representative Election - Electorate Registration]. Based on the following reasons, our Department cannot admit your application to register as a qualified voter:- You are not an indigenous villager. You are informed that your name will not be entered in the formal electorate list."

4. The District Officer of the Sai Kung District, Mr Yau Sai-yan, says that the first respondent met on 4 September 1998. It decided to amend certain Model Rules promulgated by the Heung Yee Kuk, which would allow persons such as the applicant to vote, so that these people were disenfranchised. The second respondent says that the view of the first respondent was that "the voting rights of non-indigenous villagers in indigenous villages would be subject to the agreement of the indigenous villagers". In a letter dated 7 September 1998, the first respondent wrote to the second respondent about rules for the election. Strangely, it did not make specific mention of the disenfranchisement, merely hinting at it by saying that a "recognised villager" could vote. Equally strangely, the second respondent seems to have ignored the first respondent's decision because it published the election rules as seen by the applicant, including the provision deleted by the first respondent, so that these said that the applicant was eligible.

5. On 16 September 1998, the second respondent heard from a number of indigenous villagers of Po Toi O village who said that they objected to non-indigenous villagers taking part in the election. A meeting followed this at which the second respondent's attitude was that voter eligibility was a matter for the villagers and the first respondent, not the second respondent.

6. The first respondent expressed the view that it hoped that all villagers could participate in the election, but it wished to respect the opinion of the indigenous villagers so that non-indigenous villagers were excluded.

7. Following the publication of the provisional list of voters, the second respondent received objections from candidates to many names on the list on the ground that they were not indigenous villagers. The second respondent says again that decision as to who was included in the final list was for the village and the first respondent, not the second respondent. The second respondent says that a vetting committee was formed consisting of the existing village representative (Mr Cheung Kwan), the chairman and vice-chairman of the first respondent and 6 indigenous villagers. The committee met on 13 November 1998 and decided that over 300 people should be removed from the list. The letter of 23 November 1998 I have mentioned was sent by the second respondent "acting in accordance with the wishes of the [first respondent] and the village's vetting committee".

8. In these proceedings, the first respondent, like the second respondent, seeks to distance itself from decision to refuse voting rights to the applicant. Mr Sing says that the first respondent has only an advisory role, and the second respondent is responsible "for all administration and organisation, such as fixing the date of election and registering voters". He goes on to say, however, that the eligibility of a non-indigenous villager to vote has "to be decided and agreed by indigenous villagers".

9. According to Mr Mok, the attitude of the second respondent in these proceedings is "neutral". As I said to Mr Mok in court, I find it quite astonishing that the government has no view on this matter. Whether or not a person in Hong Kong has the right to vote in an election, albeit at a pretty low level, is, I would have thought, a matter of some importance; certainly of sufficient importance for the government to be concerned. The attitude adopted by the second respondent, both in the happenings leading up to the applicant being disenfranchised and in these proceedings, which, as Mr Dykes put it, is verging on one of indifference, is very puzzling.

10. The intervener, who was declared to be a proper person to be heard in opposition to the application, does not distance himself from the matter. He says that he opposes the application. He does so on the basis that "Even since the establishment of the said village sometime before 1898, non-indigenous villagers were and still are traditionally not allowed to vote in the said election notwithstanding that they have been living in the said village for years." This, he says, is because the village representative has the task of identifying indigenous villagers for the purpose of such privileges as the entitlement to a "small house", and he could not do that easily if he were a non-indigenous villager. I would have thought that the main task of a village representative was to represent the village - the whole of the village - and he could better do that if the whole of the village had had a say in his election.

11. Mr Cheung Kwan, who was said by the second respondent to have been part of the vetting committee and who is the present village representative, says that he has never heard of any vetting committee. He supports the applicant's right to vote.

12. A "village representative" is, under the Heung Yee Kuk Ordinance (Chapter 1097), "a person elected or otherwise chosen to represent a village who is approved by the Secretary for Home Affairs". That does not help very much, so one must look elsewhere to see if the applicant has a right to vote in the election or other choice of the village representative. The broad purpose of the Kuk is represent the interests of "the people of the New Territories". There is not the slightest hint in the Ordinance, or elsewhere, that the "the people of the New Territories" means anything other than all the people of the New Territories; the phrase cannot possibly be construed, in the context of the Ordinance as a whole, as meaning only those people of the New Territories who are indigenous villagers.

13. Article 26 of the Basic Law says that "Permanent residents of the Hong Kong Special Administrative Region shall have the right to vote and the right to stand for election in accordance with law." The applicant is a permanent resident.

14. Article 39 of the Basic Law provides for the receipt of the International Covenant on Civil and Political Rights (ICCPR). Under Article 25 of the ICCPR, the applicant has a right to take part in the conduct of public affairs. There can be no doubt that the election or choice of a village representative is a public affair. This right is not to be restricted by reason of the applicant's lineage. It can be subject to reasonable restrictions. One of these could be that, if you have no connection with the village concerned, you may not vote or take part in the choice of that village's representative.

15. Of course it is so that the law need not provide for an election to an office. The law could have provided that the village representative would be the eldest inhabitant, or the inhabitant who had resided in the village for the longest period of time, and the applicant could not have complained about this. But once the law provides for an election or other method of choice by the village, only reasonable restrictions may be applied to exclude villagers from being eligible to vote

16. Without more, these provisions of the law lead the conclusion that the decision to debar the applicant from taking part in the choice of the representative of his village is unlawful.

17. The applicant also complains that he has been subject to unlawful discrimination forbidden by the Sex Discrimination Ordinance (Chapter 480) . The undisputed evidence is that an non-indigenous villager woman married to a indigenous villager man may vote in an election of a village representative, but a non-indigenous villager man married to a indigenous villager woman may not do that. That is clear discrimination on the grounds of the man's sex, and is unlawful.

18. Unfortunately, I do not have the benefit of any legal argument from the respondents, but I think that Mr Collins, for the intervener, has said all that can be said in advancing a case against the conclusion I have just mentioned.

19. There is no doubt that indigenous villagers have some privileges. These include those relating to burial, those under the small house policy, and exemption from some rates. Mr Lau Koon Wah, an indigenous villager who made an affirmation in support of the intervener, suggests that one of the "customary, ancestral and other legal rights" enjoyed exclusively by indigenous villagers is "the right to participate in the selection of the village representative". It cannot possibly be so that there is a custom that indigenous villagers enjoy, to the exclusion of non-indigenous villagers, the right to choose village representatives under Chapter 1097 that only became law in 1959. That is nonsense. Indeed, Mr Collins expressly disavows any reliance on an argument that indigenous villagers have a customary exclusive right to vote for a village representative. But, putting custom aside, it is very difficult to see what is left.

20. Mr Collins says that the Kuk is not an institution representing all the people of the New Territories; that the Ordinance created or confirmed a system for representing only the indigenous inhabitants. For all I know, that may in fact be the way the Kuk works, but it is certainly not what is contemplated by the law.

21. Mr Collins also argues that there does exist a special privileged constituency of indigenous inhabitants in the New Territories, and this class is recognised by Article 122 of the Basic Law. This Article provides special protection is afforded to landed property held by indigenous villagers. This is undoubtedly so, but is nothing to the point. Nothing I have been shown indicates that this privileged constituency has exclusive voting rights in respect of village representatives.

22. The next argument is that the applicant may vote in other elections in Hong Kong so the ICCPR is satisfied. I do not accept this. Of course, there may be elections in Hong Kong from which the applicant may be barred from voting. The question is: Is that restriction reasonable? To disallow the applicant a vote in the Legal Functional Constituency is not unreasonable because he is not a lawyer, but it is unreasonable to refuse to allow him to vote for the representative of the village in which he was born and has lived and worked all his life on the ground that he is not an indigenous villager.

23. Mr Collins relies on Article 40 of the Basic Law, which says that the "lawful traditional rights and interests of the indigenous inhabitants of the 'New Territories' shall be protected by the Hong Kong Special Administrative Region", although he recognises that this begs the question as to what are such "lawful traditional rights". He accepts that there is no custom relating to the exclusive right to vote for the village representative, but, he says, Chapter 1097 provides for the Kuk to protect this special interest group, and, therefore, there is nothing unreasonable in restricting voting rights under that Ordinance to this sector of the community. As I have said, I cannot see anything in Chapter 1097 that sanctions the view that the Kuk is there exclusively to protect the interests of this special interest group. Of course, that is one of the Kuk's functions; to make sure that the rights of the indigenous villagers are not eroded, but this does not mean that it has no interest in protecting the rights of other New Territories inhabitants. And it certainly does not mean that any election or choice under that Ordinance may reasonably be restricted to indigenous villagers.

24. Mr Collins says that the law in Chapter 1097 simply acknowledges that the process of election of the village representative is entirely an internal affair of the village which may conduct that process of choice in any manner it pleases. What this submission means, but does not say so directly, is that the process of election is entirely an internal affair, not of the village, but of only some of the members of the village, who may not even be the majority of the regular inhabitants. The submission only has to be translated into what is meant for it to be rejected as unreasonable. It is interesting that, during his submissions, Mr Collins referred several times to "outsiders", meaning people like the applicant who may have lived in the village all their lives. I would not think of these people as "outsiders".

25. I find that there is nothing in what Mr Collins has submitted that persuades me that refusing to allow the applicant a vote in the choice of the representative for his own village is anything but a blatantly unreasonable restriction on his civil rights.

26. Mr Collins accepts that he is in difficulty in arguing that there has been no discrimination against the applicant on the grounds of his sex. He was driven to arguing that Chapter 480 was incompatible with the guarantees contained in Article 40 of the Basic Law. There is nothing before me to show that one of the "lawful traditional rights and interests of the indigenous inhabitants" is the right to discriminate against a man on the ground of his sex. That argument is rejected.

27. So, in my view, the applicant has established an invasion of his civil rights, and he is entitled to a remedy. The applicant asks for an order of mandamus and an injunction. The difficulty about that is that no one has been open enough to admit responsibility for the decision. There is a pointing of fingers by one respondent to the other, and a pointing at some vetting committee, although a person said to have been a member of that committee denies any knowledge of it. It is sufficient, I think, to make the appropriate declarations, and whoever makes the decision must take these, as long as they stand, as the law. I grant declarations in terms of paragraphs 3, 4(a) and 4(b) of the relief sought in Form 86A.

28. As to costs, there are some obvious complications in this case. The matter may have to be argued, but there is little doubt that both respondents had a hand in bringing about the situation in which the applicant was compelled to take proceedings to protect his rights, and, although their involvement in these proceedings has been half-hearted, neither respondent has said plainly that it does not contest the relief sought. In particular, the government's attitude has been less than a court is entitled to expect in this sort of matter. Protection of a person's rights in the public law area are, or should be, a matter of concern to the government. It is simply not good enough to refuse to take a view. At this stage, it seems right to me that the applicant should have his costs from both respondents and the intervener. I make an order nisi accordingly.

	JK FINDLAY
	Judge of the High Court Court of First Instance

Representation:

Mr Philip Dykes, SC, and Mr Stephen Yan, instructed by Messrs CC Lee & Co, for the applicant.

Mr Sing Hon Keung, the Chairman of the first respondent.

Mr Johnny Mok and Ms Fanny Wong, instructed by the Department of Justice, for the second respondent.

Mr James Collins, instructed by Messrs Clarke & Liu, for the intervener.

Remarks:

On appeal by the 2nd Respondent and the Intervener to the Court of Appeal: Appeal dismissed with costs. Please refer to CACV000137/1999.

18273-EN-1999-01-25

CHAN WAH v. HANG HAU RURAL COMMITTEE AND ANOTHER

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HCAL000112A/1998

1998 HCAL No. 112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

____________

BETWEEN
	CHAN WAH	Applicant

	AND

	(1) HANG HAU RURAL COMMITTEE (2) SAI KUNG DISTRICT OFFICE	Respondents

____________

Coram: The Hon. Mr. Justice Keith in Court

Date of Hearing: 25 January 1999

Date of Delivery of Judgment: 25 January 1999

_______________

J U D G M E N T

_______________

Introduction

1. The election of a village representative for Po Toi O Village in the New Territories is due to take place next month. The Applicant, Chan Wah, applied to be registered as a voter in that election. That application was refused on the ground that he was not an indigenous villager of Po Toi O Village. Mr. Chan contends that the refusal to register him as a voter in the election on that ground was unlawful. He now applies for judicial review.

Mr. Chan's original case

2. The Notice of Application for leave to apply for judicial review set out how Mr. Chan's case was originally put. His case was simple. The election was governed by rules which provided that a person was eligible to vote in the election if he or she was an indigenous villager, or if he or she was a Hong Kong permanent resident aged 18 or over who had lived in the village for at least 7 years. Mr. Chan was a Hong Kong permanent resident aged 66 who had lived in Po Toi O Village all his life. Accordingly, the fact that he was not an indigenous villager should not have prevented him from being registered as a voter in the election. This reasoning was said to apply to another 291 people who had been denied the right to vote in the election. If they were permitted to vote in the election, that would increase the number of voters from 530 to 822.

The rules governing the election

3. Evidence which has now been filed on behalf of the Respondents, namely the Hang Hau Rural Committee ("the Rural Committee") and the Sai Kung District Office ("the District Office"), is to the effect that the provisions in the rules relating to eligibility to vote in the election have been superseded. The evidence is that there are no legislative provisions or mandatory rules governing the election of village representatives. Accordingly, the Rural Committee promulgated a set of rules to govern the 1998 elections of village representatives. However, the Rural Committee recognised that villagers should be entitled to adapt those rules so as to reflect the particular traditions of each village. In particular, it was decided that it would be up to indigenous villagers to decide whether voting rights should be accorded to non-indigenous villagers. In Po Toi O Village, the indigenous villagers decided not to permit non-indigenous villagers to vote in the election. That decision was made by a committee representing the indigenous villagers. There is evidence that there was an exception to the rule that only indigenous villagers are entitled to vote in the election: non-indigenous women villagers who are married to indigenous villagers are entitled to vote.

4. That is the state of the evidence at present. If that remains the undisputed evidence, it means that Mr. Chan's case as originally put must fail. He cannot rely on the provisions as to eligibility contained in the rules promulgated by the Rural Committee. Those provisions were not to apply to Po Toi O Village. What prevents him from being registered as a voter in the election is the rule laid down by the committee representing the indigenous villagers that voters have to be indigenous villagers.

Mr. Chan's new case

5. That, no doubt, is why a wholly new case is now advanced on Mr. Chan's behalf. It is contained in proposed amendments to the Notice of Application. The decision challenged is still the decision not to register Mr. Chan as a voter in the election, but the grounds now contend that (a) the rule allowing only indigenous villagers to vote is unlawful because it is inconsistent with the Basic Law and the International Covenant on Civil and Political Rights as applied to Hong Kong, and (b) the exception to the rule relating to non-indigenous women villagers who are married to indigenous villagers contravenes the Sex Discrimination Ordinance (Cap. 480). Notice of Mr. Chan's intention to apply for these amendments, and to rely on further evidence relating to the legality of the exception to the rule, was only given to the Respondents on 20th January.

The attitude of the Respondents

6. Neither the Rural Committee nor the District Office wish to take an active part in these proceedings. That is understandable. On the current state of the evidence, the rule which is challenged is not one for which they are responsible. Although the election is conducted under the auspices of the Rural Committee, the rules relating to eligibility to vote which it recommended were not adopted by the indigenous villagers of Po Toi O Village. Accordingly, the Rural Committee is asking that it be deleted as a Respondent from these proceedings. The stance of the District Office is only slightly different. Although it provides administrative help for the election, it too had no role to play in determining who should be eligible to vote in it. It recognises that it has a role to play once the election has taken place. That is because the Secretary for Home Affairs is required by section 3(3)(a) of the Heung Yee Kuk Ordinance (Cap. 1097) to approve the appointment of a village representative before he or she takes up office. The Secretary for Home Affairs has delegated that task to District Officers. Accordingly, the stance which the District Office has decided to take is to remain in the proceedings but to adopt an entirely neutral stance.

The need to serve the proceedings on the indigenous villagers

7. In these circumstances, can this application for judicial review proceed today? I do not think that it can. The group of persons who would want to justify the rule which is being challenged are the indigenous villagers of Po Toi O Village. They must be given the opportunity to make representations if they want to. So far, the committee which represents them has not been served with any of the documents in the proceedings, and its members may not even know what it is now proposed to argue against the view taken by the indigenous villagers.

Conclusion

8. Accordingly, the hearing of the application must be adjourned to enable the indigenous villagers to take part in the proceedings through the committee which represents them if they want to. I propose to give Mr. Chan leave to amend the Notice of Application to enable the new points which are taken to be argued on his behalf. I shall hear representations as to such directions I should give for the service of these proceedings on the committee which represents the indigenous villagers, and on the directions I should give for the further conduct of these proceedings. Finally, the judgment which I delivered on 9th January explained why I was making an order which had the effect of postponing the election from 10th January. I shall want to hear

representations as to what should now happen to the election, bearing in mind that it is due to take place on 7th February.

	(Brian Keith)
	Judge of the Court of First Instance

Representation:

Mr. Philip Dykes S.C. and Mr. Stephen Yam, instructed by Messrs. C. C. Lee & Co., for the Applicant.

Mr. Shing Hon Keung, Chairman of the Hang Hau Rural Committee, for the 1st Respondent.

Mr. Johnny Mok, instructed by the Department of Justice, for the 2nd Respondent.

18490-EN-1999-01-09

CHAN WAH v. HANG HAU RURAL COMMITTEE AND ANOTHER

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HCAL000112/1998

1998 HCAL No. 112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

______________

BETWEEN
	CHAN WAH	Applicant

	AND

	(1) HANG HAU RURAL COMMITTEE (2) SAI KUNG DISTRICT OFFICE	Respondents

______________

Coram: The Hon. Mr. Justice Keith in Court

Dates of Hearing: 8th and 9th January 1999

Date of Delivery of Judgment: 9th January 1999

_______________

J U D G M E N T

_______________

The current proceedings

1. The election of a village representative for Po Toi O Village in the New Territories is due to take place tomorrow. The applicant, Chan Wah, applied to be registered as a voter in the election. That application was refused. Mr. Chan contends that the refusal to register him as a voter in the election contravened the election's rules. His case was sufficiently arguable to have justified granting him leave last Monday to apply for judicial review of the refusal to register him as a voter in the election.

The application for an injunction

2. Mr. Chan is now applying for an injunction which has the effect of preventing the election from taking place until after the question of whether he should be permitted to vote in it has been determined. I was initially reluctant to go along with that. I assumed that if it was found that Mr. Chan should have been permitted to vote in the election, it would then be open to him to challenge the election on the ground that he was wrongfully refused permission to vote in it. If his vote would have proved decisive, I assumed that the challenge to the election would succeed, and there would have to be a fresh election in which Mr. Chan would be permitted to vote. I did not think that it would be right to stop the election going ahead now, simply because Mr. Chan may have been wrongfully refused to be a voter in it, when it may have turned out that his vote would not have been decisive at all.

3. However, a further affirmation filed yesterday was to the effect that the principal ground on which Mr. Chan complains that he should have been permitted to vote in the election also applies to another 291 persons who have been denied the right to vote in the election as well. That will increase the number of eligible voters from 530 to 822. The votes of such a large number of people could well be decisive in the election. In addition, I was also told yesterday that the term of office of the present village representative will not expire until 31st March. Provided that the election takes place before then, the village will not be denied a representative if the election is postponed for a few weeks.

4. Moreover, I am now more than a little sceptical as to whether it will be open to Mr. Chan to challenge the election if it takes place tomorrow. The election petition procedure provided for by the Electoral Provisions Ordinance (Cap. 367) may not apply to this election. Indeed, my annotated version of the Laws of Hong Kong tells me that the Electoral Provisions Ordinance was not adopted by the Standing Committee of the National People's Congress as one of the laws of the Hong Kong Special Administrative Region. It may therefore be that the only way in which a successful candidate in tomorrow's election can be prevented from becoming the village representative is by persuading the Secretary for Home Affairs not to approve his appointment under section 3(3)(a) of the Heung Yee Kuk Ordinance (Cap. 1097). However, there is no certainty that the Secretary for Home Affairs would refuse to approve his appointment simply on the ground that not all the eligible voters had been permitted to vote in the election. It may be that the approval of the appointment in those circumstances would itself be subject to judicial review, but there is no certainty that the court would quash that approval. In short, there is uncertainty as to whether Mr. Chan could do anything to set aside the election of whoever is elected tomorrow.

The difficulties involved

5. These considerations have led me to conclude that the election should not take place tomorrow, provided that delaying the election does not prevent the successful candidate from taking up office by 31st March when the tenure of the incumbent expires. However, that is not quite as straightforward as it sounds. I say that for two reasons. First, the elected village representative will be eligible to stand for election to the Executive Committee of the Hang Hau Rural Committee of the Heung Yee Kuk. The elections are due to take place on 2nd March, and the last date for nominations is 15th February. If those dates are to be maintained, the election of a village representative for Po Toi O Village has to have taken place a few days before 15th February in order to give the successful candidate a few days to decide whether to stand for election to the Executive Committee. That would mean that this application for judicial review would have to have been heard and determined by at least a few days before that to enable arrangements to be made for the election to take place a few days before 15th February with all eligible voters able to vote in it. Since the election is presently due to take place tomorrow, a Sunday, I assume that Sunday is regarded as the most appropriate day of the week for the election to take place. An election on Sunday, 7th February, would therefore be necessary to give the successful candidate time to decide whether to stand for election to the Executive Committee. That would mean that the application for judicial review would have to have been heard and determined by 3rd February at the latest.

6. Secondly, the rules for the election laid down by the Hang Hau Rural Committee provide that a provisional list of eligible voters must be promulgated 60 days before the election. The reason for that is to enable objections to any voter on that list to be lodged and determined before the final list of eligible voters is promulgated 40 days before the election. Against that background, it is necessary to bear in mind the basis on which Mr. Chan was not registered as a voter, and the principal basis on which he contends that he should have been. He was not registered as a voter because he is not an indigenous villager. He contends, as do the 291 other villagers, that a Hong Kong permanent resident aged 18 or over who has lived in the village for at least 7 years is eligible to vote in the election, even if not an indigenous villager. If that is correct, he and the other 291 villagers will be eligible to vote in the election, unless they are in fact disenfranchised by status, age or non-residence. It follows that if the election is postponed to, say, 7th February, there must be built into the procedures a mechanism by which objections to potentially eligible voters on the ground of status, age or non-residence can be lodged and determined.

7. In my judgment, neither of these two difficulties are insuperable. It is possible for the application for judicial review to be heard and determined by 3rd February. The directions which could be made to give effect to the need for judgment to have been given by 3rd February could be as follows:

(i) The Originating Motion be filed by 4:30 p.m. on 11th January.
(ii) Such evidence as the Respondents wish to rely upon be served and filed in court by 4:30 p.m. on 15th January.
(iii) Such evidence as Mr. Chan wishes to rely upon in reply be served and filed in court by 4:30 p.m. on 20th January.
(iv) The hearing of the application for judicial review be fixed for 25th January, with a time estimate of one day.

8. As for the mechanism for objections to be lodged and determined, a new provisional list of eligible voters can be prepared and promulgated in the next few days. That could be promulgated without prejudice to any contention that the current final list of eligible voters is accurate and complete. That new provisional list would contain the names of Mr. Chan and the other 291 villagers said to be in the same position as him. Objections could then be made to Mr. Chan and the other 291 villagers if any of them are said not to be Hong Kong permanent residents or not to have attained the age of 18 or not to have lived in the village for at least 7 years. Those objections could be determined in time for a final list of eligible voters to be prepared in time for an election on, say, 7th February. If the application for judicial review succeeds, that final list will include those persons who following such objections are accepted to be Hong Kong permanent residents aged 18 or over who have lived in the village for at least 7 years. If the application for judicial review fails, that final list will not include such persons. I appreciate that this new provisional list of eligible voters and any new final list would not have been promulgated in accordance with the time-table envisaged by the rules, but the rules are flexible because the rules themselves provide that the time-table is to be followed only "as far as possible".

The attitude of the Respondents

9. The 1st Respondent to this application for judicial review is the Hang Hau Rural Committee, which promulgated the election rules and under whose auspices the election takes place. The 2nd Respondent is the Sai Kung District Office, which provides administrative help for the election. Mr. Johnny Mok for the 2nd Respondent supports Mr. Chan's applicant for an injunction which has the effect of postponing the election for the time being. He is content with the arrangements which I have described which draw heavily on his proposals, as indeed is Mr. Stephen Yam for Mr. Chan. The only dissenting voice is that of Mr. Shing Hon Keung, the Chairman of the Hang Hau Rural Committee. Understandably, he does not relish the prospect of the administrative inconvenience involved in unscrambling tomorrow's election, and in determining any objections based on the status, age and non-residence of Mr. Chan and the other 291 villagers - the consideration of which will have been unnecessary if the application for judicial review fails. But I have concluded that these disadvantages are insignificant when compared with the injustice which would be done to Mr. Chan and the other 291 villagers if the election went ahead tomorrow, but if there was no sure mechanism by which a fresh election could take place, if it turns out that a large number of eligible voters whose votes would have been decisive were wrongly disenfranchised.

Conclusion

10. For these reasons, therefore, I propose to make an order which has the effect of postponing the election for the time being, and I will hear representations as to the precise terms of the order which I should make.

	(Brian Keith)
	Judge of the Court of First Instance

Representation:

Mr. Stephen Yam, instructed by Messrs. C. C. Lee & Co., for the Applicant.

Mr. Shing Hon Keung, Chairman of the Hang Hau Rural Committee, for the 1st Respondent.

Mr. Johnny Mok, instructed by the Department of Justice, for the 2nd Respondent.