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【案例名称】
CHAN WAH v. HANG HAU RURAL COMMITTEE AND OTHERS
【审理法院】 锟竭等凤拷院(锟斤拷锟竭凤拷庭) / Court of Appeal of the High Court
【案件类别】 锟斤拷锟斤拷锟斤拷锟解考锟斤拷 / Civil Appeal
【判决日期】 2000/1/26
     
 
【正文】
 
 
CHAN WAH v. HANG HAU RURAL COMMITTEE AND OTHERS

CACV000137/1999

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, the relief sought was for declarations that the arrangements made by the Hang Hau Rural Committee were unlawful. It did not ask for any order quashing the alleged decision.The reasons were apparent from the evidence. While it was the vetting committee which decided that Mr Chan was not entitled to vote, it was the Sai Kung District Office which compiled the list and wrote to Mr Chan telling him that he was not registered as a voter. Further, the status and authority of the vetting committee was rather doubtful. It was not certain, in view of its composition, whether it was a committee of the village (since the present village representative and 6 villagers were present) or that of the Hang Hau Rural Committee (since the Chariman and Vice Chairman of the Rural Committee also attended). Nor were the roles and the involvement of the Hang Hau Rural Committee and the Sai Kung District Office in the election arrangements beyond dispute.

14. Faced with such uncertainty, counsel for Mr Chan was content to obtain from the court declarations that the election arrangements in question which excluded Mr Chan as a voter were unlawful. Having considered the merits of the application, the trial judge apparently regarded such relief to be appropriate.

15. In AL28 of 1999, Mr Tse complained against the "decision of the Pat Heung Rural Comitee" in refusing his right to stand as a candidate in the village election in Shek Wu Tong Village. Again the respective roles and involvement of the village, the Rural Committee and the Yuen Long District Office were not entirely clear. It was the Rural Committee which issued the election rules that prohibited Mr Tse and other non-indigenous villagers from registering as voters and running as candidates. It was the villagers of Shek Wu Tong Village which at the first village meeting decided to allow Mr Tse and non-indigenous villagers to vote and which at the second meeting went back on that earlier decision. The status and authority of the village meetings were doubtful. So was the effect of their resolutions. Finally, it was the Rural Committee which confirmed the earlier "village resolution" giving Mr Tse the right to vote but denying him the right to stand for election.

16. Mr Tse sought mainly declaratory relief. This included a declaration that the Pat Heung Rural Committee's decision refusing him the right of candidacy was unlawful. After the village had held its election in March 1999, he also asked for a declaration that the election was null and void and an order that a re-elction be held. The other relief sought was similar to that sought in AL 112 of 1998, i.e., declarations that the election arrangements of the Pat Heung Rural Commitee were unlawful. The trial judge, apart from declaring that those arrangements were unlawful, went further to declare that the March village election was null and void and ordered a re-election.

17. In my view, while Mr Chan was immediately aggrieved by the decision disallowing him the right to vote and Mr Tse by the decision refusing to give him the right to stand as a candidate at the village elections, it was in effect the whole election arrangements in these villages which were put into question in these proceedings. There was uncertainty as to which party was responsible for making the respective decisions or which decision is being challenged. Where this cannot be ascertained with any degree of precision, it is not appropriate and sometimes not possible in an action for judicial review to seek an order that such decision be quashed. It would be difficult to identify the party at which the order is to be directed. But that does not mean that the court has no power to grant any other relief if the circumstances demand that the court should do so. This is clearly permissible under Order 53 rule 1. I derive further support from the decision in R v Secretary of State for Employment, ex part Equal Opportunities Commission and another, [1995] AC 1. There the House of Lords held among other things that where it had not been demonstrated that there was a decision made by the Employment Secretary which could be quashed, the court could grant declaratory relief on an application for judicial review that the relevant domestic law was incompatible with European law.

18. In my view, where it is not clear which party made the decision which can be quashed but all the parties are brought before the court, the aggrieved party may seek declaratory relief in relation to the subject matter of the complaint. In the present cases, the real complaints are made against the election arrangements. All those who were or would be involved in the village elections in these two villages are before the court. They would be bound by any declaration which the court sees fit to make. I should think that declaratory relief would be the appropriate remedy in the circumstances of these two cases.

Presence of Government in these proceedings

19. In his judgment, the trial judge in AL112 of 1998 remarked that no party would take responsibility for making the decision to exclude Mr Chan from the voters list. He criticised the Sai Kung District Office for taking what it called a "neutral stand". Mr Fung takes exception to such criticism. He points out that at the initial stage, Keith J (as he then was) took the preliminary view that since the decision in question was not made by the Sai Kung District Office, it could drop out of the proceedings. It was only at the trial that Findlay J, being seized of the matter, found it necessary to hear the Sai Kung District Office in view of the issues in dispute. In AL28 of 1999, as a result of Findlay J's criticism in AL112 of 1998, the Secretary for Justice joined as intervener and addressed the court on the issues in that case.

20. If the Sai Kung and Yuen Long District Offices were indeed taking a neutral stand in relation to the elections in these two villages, one wonders why the Government wants to appeal against the decisions in both cases. Mr Fung explains that the Government's position is that there is no breach on the part of the Government of the provisions of the ICCPR and the Basic Law and that the appeals are brought against the two decisions in so far as the declarations and orders may affect the Government. He accepts that in Mr Chan's case, the election arrangements are unlawful in so far as they are inconsistent with s.35 of the Sex Discrimination Ordinance and there is no appeal against the declaration to this effect.

21. I find this explanation rather unconvincing. If the Government maintains that village elections are private elections and that the District Offices only play a supporting role, I see no reason why the Government would like to appeal against the declarations and orders in these cases (save the orders for costs) since they only affect the election arrangements which the Government says were not made by the District Offices but by the villages and the Rural Committees of the respective areas. In my view, the truth of the matter is that the District Offices have played a much more involved role in these village elections than they would like to admit.

Involvement of District Office

22. Mr Simon Yau Sai Yan, the Sai Kung District Officer, said that the election of village representatives is essentially a private election. The District Office admits that it provides administrative support, prepares the voters' registers, posts up notices relating to the elections, counts the votes and acts as the unofficial returning officer in the village election. (And this would apply to elections in the other districts in the New Territories.) On the other hand, Mr Shing Hon Keung, the present village representative who is an indigenous villager, said that the Hang Hau Rural Committee only facilitates the village election in an advisory capacity and that it is the Sai Kung District Office which is responsible for organising the election and making all the arrangements. The Rural Committee, he said, has no authority to decide whether any person can be registered as a voter. It was the Sai Kung District Office which compiled the electoral register.

23. While it is accepted, as Mr Simon Yau said, that village elections are strictly not the elections of the District Offices, the evidence shows that they organise and spend public funds in organising these elections for the villages; they recommend the Model Rules to the villages as election rules; they provide active assistance in these elections, including posting up notices, compiling voters registers and acting as returning officer. Although they do not finalise the election rules or make decisions as to who can vote and who can stand as candidates, they provide and accept application forms, receive objections from both indigenous and non-indigenous villagers, reply to complaints relating to the elections, and write to those who are refused registration as voters. Finally, pursuant to s.3 of the Heung Yee Kuk Ordinance, the Secretary for Home Affairs (through the District Officers) would approve the successful candidates who would be issued special identity cards by the District Offices. It is therefore quite clear that the District Offices are not only interested in the results of these village elections, they also play a crucial part and give the villagers the impression that they are very much involved.

Private or public affairs?

24. Mr Fung argues that village elections are private elections and that since the ICCPR was incorporated into the laws of Hong Kong through the Hong Kong Bill of Rights Ordinance which by virtue of s.7 thereof is only binding on the Government and not private individuals, the provisions of the ICCPR do not apply to village elections. It is thus important to examine the role and function of village representatives, the selection of village representatives, the involvement of the Government and the relevant legislation in order to see whether such elections are private or public affairs.

Traditional functions of village representatives

25. The villages in existence in the New Territories in 1898 have been recognised by the Hong Kong Government. The traditional rights and privileges of indigenous villgers have also been accepted and protected by law. When the villages were small and almost all villagaers were indigenous, a village representative was the head of the village. His functions were limited. He assisted the villagers in (1) the certification of indigenous status for the purpose of applying for small houses and hillside burials, (2) witnessing villagers' applications for succession to estates under the New Territories Ordinance, (3) liaising between the Government and the villagers on village removal, development clearance and other Rural affairs, and (4) managing village affairs which included the settlement of disputes, and the keeping of the ancestral house and village temple.

Traditional selection of village representatives

26. The traditional way of selecting a village representative was, as the Sai Kung District Officer said, essentially a private affair. That was the time when almost all of the villagers were indigenous villagers or their male descendants. According to Mr Lau Koon Wah, who had been a village representative for some 40 years in Po Toi O Village, the village representative (who might be called the head, chief or representative) was selected at the meeting of clan elders. A consensus was reached as to the most suitable person to serve the village. There was hardly any dispute or the need to hold any election. The few non-indigenous villagers living in the village were out-numbered and probably did not bother.

27. The method of selection of a village representative has undergone several changes through the years. The first stage was pre 1898, when there was practically no system at all. The second stage was the village representative system which came only during Japanese occupation in 1941 to 1945 which was the selection of village elders among heads of families in the village by consensus. The third stage was in 1948. Mr Barrow, a Government official, wanted to standardise the conduct for the returning of village representatives. He compiled a set of election rules which were subsequently known as the Barrow Rules. The next stage was in 1994 when the Heung Yee Kuk, in conjunction with the District Offices, promulgated a set of guidelines for the election of village representatives. This came to be known as the Model Rules. The Government was then advocating a fairer and more open system of returning village representatives.

28. It can be noted that in the Barrow Rules, no mention was made of indigenous or non-indigenous villagers. On the one hand, it can be argued that the lack of such a reference was indicative of the fact that no distinction was to be drawn between indigenous and non-indigenous villagers. On the other hand, it can be said that the reference was not necessary because most residents in these villages were then indigenous villagers. The Model Rules suggest the principle of "one person one vote". I shall come back to these rules at a later stage. They are not mandatory but are recommended to the Rural Committees for adoption and use by the villages.

Traditional rights and interests of indigenous villagers

29. Both Mr Fung and Mr Grossman argue that non-indigenous villagers were traditionally excluded from village elections. They rely heavily on the existence of traditional rights and interests of indigenous villagers in the New Territories and the preservation of such rights and interests by law, in particular Article 40 of the Basic Law. Such rights and interests came from Chinese customary law. They were mainly succession rights. Certain concessions were granted to indigenous villagers in the New Territories by the Hong Kong Government. These concessions had given rise to certain rights and privileges. However, these rights and privileges were related to property rights. They were set out in a confidential paper which was compiled by the Home Affairs Bureau after a thorough study. These included the building of small houses, rates and rent exemptions, burial rights, succession rights, removal rights and compensation and the recognition of the Heung Yee Kuk ("the Kuk") as a statutory advisory and consultative body on New Territories affairs.

30. It is important to note that there was no reference to any political right or privilege. In particular, there was no mention of any right or privilege to elect a village representative to the exclusion of non-indigenous villagers. In fact, counsel is unable to refer to any authority which purports to confer such right or privilege. I do not think Article 40 of the Basic Law helps him in any way either. Article 40 preserves the traditional rights and interests of indigenous villagers, but does not confer and cannot be construed as conferring what they have not already got. I am therefore unable to agree that there is a conflict between this article and Article 39 which incorporates ICCPR provisions into the laws of Hong Kong.

31. It is argued that the recognition of the Heung Yee Kuk as a statutory advisory and consultative body on New Territories affairs indicates that such a right or privilege has existed. In my view, the recognition of the Heung Yee Kuk is far from suggesting, let alone establishing, the existence of such right or privilege. On the contrary, if Heung Yee Kuk is to be a truly advisory and consultative body on New Territories affairs, they should as far as possible represent all the residents rather than any particular group. I shall look at this ordinance again later.

Modern role of village representatives

32. As a result of urbanisation and other social factors, the number of indigenous villages in the New Territories has reduced. In late 1950s, there were about 900 villages, but there are now only 688. The number of indigenous villagers residing in the New Territories has also reduced, with some of them choosing to reside overseas. On the other hand, the number of non-indigenous villagers has increased substantially over the years.

33. Whatever the traditional role and function of a village representative has been, it is quite clear that it now has a much more important public and constitutional role to play.

34. Apart from the change in population structure in the New Territories, there is another more significant change that has taken place as a result of the enactment of the Heung Yee Kuk Ordinance. According to a retired District Officer, Mr Hayes, the Heung Yee Kuk originated from a society founded in 1926 to "defend the rights to land in the face of Government expropriation of village properties in New Kowloon". Shortly after the war, when a system of village representative was set up in 1948, the Kuk developed as representative of all parts of the indigenous New Territories community. This was de-registered in 1958 when it went into difficulties. It was reconstituted as a statutory body pursuant to the Heung Yee Kuk Ordinance in 1959.

35. Under the present practice, a village representative becomes automatically a member of the Rural Committee of the area in which the village is situated. Pursuant to the Heung Yee Kuk Ordinance, if he is elected among the village representatives of that area as the Chairman or Vice-Chairman of the Rural Committee, he would automatically be an ex-officio councillor of the Heung Yee Kuk Full Council. He can also be elected by the ex-officio councillors of 3 particular districts, namely Tai Po, Yuen Long and Southern District to be a Special Councillor of the Full Council. If a village representative is the Chairman of the Rural Committee, he is an ex-officio member of the Executive Committee of the Kuk or he may be elected by the Full Council to be a member of that Executive Committee. See sections 2 and 3 of the Heung Yee Kuk Ordinance. Further, as a member of the Full Council, he can be returned to the Legislative Council either through the Heung Yee Kuk functional constituency or through the Election Committee of which the Kuk is a sector. See section 20(1)(a) and 22(2) of the Legislative Council Ordinance, Cap 542. Furthermore, under the Basic Law, the Kuk can also nominate its members to the Chief Executive Selection Committee for the purpose of selecting a Chief Executive.

36. It can be seen that a new political landscape has been created by the Heung Yee Kuk Ordinance and that has changed the role of a village representative. He does not only look after the traditional rights and interests of indigenous villagers. He also participates in the affairs of the village and, through the Rural Committee, in the affairs of the whole area in which his village is situated. He may, if he is the chairman or vice chairman of the Rural Committee, participate through the Heung Yee Kuk in the affairs of the New Territories and through the Legislative Council, in the affairs of the whole of Hong Kong.

37. Pursuant to s.3(3) of the Heung Yee Kuk Ordinance, the Secretary for Home Affairs (a public officer) has a power to approve the successful candidate in a village election. As mentioned earlier, the District Offices are involved in these elections, spend public money on them and actively assist them.

38. In my view, given the modern role of village representatives, the involvement of the Government in these village elections and the structure of the Heung Yee Kuk, it is difficult to argue that since at least 1959, the selection of village representatives, be it by election or otherwise, is a process which can still be regarded as private any more. These elections are now very much public elections. The fact that a village representative can be elected or "otherwise chosen" simply means that in cases where there is no contestant, no election is needed.

SHA's power and obligation

39. There is no statutory provision with regard to how a village representative is to be elected or chosen. But the successful candidate has to be approved by the Secretary for Home Affairs (who has delegated such power to the District Officers in the districts). See s.3 (3) of the Heung Yee Kuk Ordinance. If he refuses to approve or withdraws approval of any person as a village representative, such person may appeal by way of petition to the Chief Executive in Council whose decision shall be final. See section 3(3)(d). However, there is no provision in the Heung Yee Kuk Ordinance which gives any guidance as to what the Secretary for Home Affairs has to consider before he gives or refuses his approval. The only provision is contained in s. 35 of the Sex Discrimination Ordinance which provides that the Secretary shall not approve a person as a village representative where that person has been elected or otherwise chosen according to a procedure in which women have not been able to participate on equal terms with men, whether as candidates, nominees, electors or in some other relevant capacity. That is to say, if a village representative is elected or chosen according to a procedure which is contrary to s.35 of that Ordinance, the Secretary must not approve the successful candidate. This was accepted by the Secretary and hence there is no appeal in AL112 of 1998 against the declaration that the election arrangements are unlawful on the ground that they contravene that provision.

Application of ICCPR and Basic Law

40. If a village representative is elected or chosen by a procedure which is contrary to some law other than s.35 of Cap 480, one would expect that the Secretary should also refuse to give his approval. The reason for this is, in my view, obvious. If the Secretary is conferred by legislation with a power of approval, he has to exercise it responsibly and reasonably. He is thus obliged to ensure not only that the successful candidate is a fit and proper person to be a village representative but also that he is properly elected or chosen and that his election or selection is not in any way contrary to the law or any reasonable and acceptable principles. Such law and principles should include the provisions of the ICCPR and the Basic Law. Just as the Secretary must have regard to the principle against sex discrimination which is now provided in the Sex Discrimination Ordinance before he approves the successful candidate, so should he have regard to the principles under the ICCPR which are enshrined in the Basic Law. Hence, while it is accepted that the provisions of the Bill of Rights Ordinance bind only the Government and public authorities, these provisions are clearly equally applicable as yardsticks in measuring the legality, reasonableness and acceptability of the election process of village representatives to enable the Secretary to exercise his statutory power of approval responsibly and reasonably.

Election arrangements in these two cases

41. The Model Rules were promulgated by the Heung Yee Kuk and recommended to the Rural Committees by the District Office in May 1994 as guidelines for elections in the villages. It was up to each village to determine the manner of its election according to the customs and traditions of that village. These Model Rules had been adopted for use in previous elections by some of the villages. It must be noted that rule 1 says that all village representatives must be elected according to the principle of "one person one vote". This would suggest that each villager, whether he is indigenous and non-indigenous, should have the same voting right.

42. In AL112 of 1998, for the village election in Po Toi O Village, according to the original rule 4(b), any Hong Kong permanent resident, as defined in the Immigration Ordinance (Cap. 115), irrespective of gender, aged 18 or above and has been residing mainly in the corresponding village is entitled to vote. Mr Chan would have qualified, although it can be noted that there is no residential requirement for indigenous villagers. But the vetting committee decided to withdraw this rule and hence Mr Chan and many others were not allowed to register as voters. Further, while a female non-indigenous villager who married an indigenous villager was allowed to register and vote, Mr Chan who married an indigenous villager was not. In this respect, the election rules for Po Toi O Village did not follow the Model Rules. In so far as Mr Chan is excluded from the electorate on the ground that he is not an indigenous villager, this is unacceptable. It is also discriminatory against men who married female indigenous villagers and against single female indigenous villagers because of their marital status. Incidentally, rule 5 of the Model Rules (which was apparently adopted by Po Toi O Village) provides that only indigenous villagers (aged 18 or above, irrespective of gender) are allowed to stand for election. This would also be discriminatory against non-indigenous villagers.

43. In AL28 of 1999, it is accepted that Shek Wu Tong Village was established in the Pat Heung area since 1991 as a branched-off village from Tin Fu Tsai Mun. The Pat Heung Rural Committee had adopted the guidelines in the Model Rules in 1994 in the previous village election and this was confirmed at a general meeting of the Pat Heung Rural Committee held on 7 November 1998 for this election. According to a resolution at that meeting, it was decided that in principle, non-indigenous villagers over the age of 18, irrespective of gender, who are certified to have been residing in the village for more than 7 years are eligible as voters but female indigenous villagers who have married other villagers would have lost their eligibility in their original village but can register in the village of their husbands. Despite this resolution, the notice calling for registration as voters only permitted indigenous villagers over the age of 18 to register. It was after various objections and discussions that non-indigenous villagers were allowed to vote but not to stand for election. This is the complaint of Mr Tse. In any event, the election arrangements would also be discriminatory against female indigenous villagers because of the residence requirement.

44. The question is whether the discriminatory arrangments in these two villages are unlawful.

Exclusion of non-indigenous villagers

45. Both Mr Fung and Mr Grossman argue that when the Heung Yee Kuk Ordinance was enacted in 1959, the majority of the people in the New Territories were indigenous villagers. At that time village representatives were elected or chosen from among indigenous villagers. That was the method of selecting village representatives. Non-indigenous villagers have always been excluded. It is said that this is also the method anticipated by the Heung Yee Kuk Ordinance. With respect, upon a true construction of that Ordinance, I do not think this submission can be right.

46. The ordinance was not enacted to freeze the position at the time of its enactment. There is a presumption that "Parliament [the legislature] intends the court to apply to an ongoing Act [ordinance] a construction that continuously updates its wording to allow for changes since the Act [ordinance] was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any dates, the language of the Act [ordinance], though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law... Whether an Act [ordinance] is an ongoing or fixed time Act [ordinance] it may be necessary to determine how its meaning was understood at the time it was passed. For this, reference may be made to contemporary sources." See Bennion on Statutory Interpretation, 3rd Edition, at section 288.

47. It cannot be said from the wording of the Heung Yee Kuk Ordinance that it is a fixed time legislation. It is quite clearly ongoing and it looks into the future. This is clear from the preamble to that ordinance which spells out the intention of legislation. It says:

"(a) the Heung Yee Kuk has in the past served as a valuable advisory body to the Government on New Territories affairs and has been a forum where leaders of opinion in the New Territories have been able to exchange views; and
(b) it is now considered desirable that the Heung Yee Kuk should become a statutory advisory body with a constitution so framed as to ensure that it will as far as possible be truly representative of informed and responsible opinion in the New Territories."

The importance of the Heung Yee Kuk's role in the past is thus confirmed and recognised. Apart from that, it is also the intention of the legislation (a) to turn the Kuk into a statutory body; (b) that the Kuk should continue to be an advisory body and (c) that the Kuk should as far as possible be truly representative of informed and responsible opinion in the New Territories. If it is to be truly representative, it cannot represent only a section of the residents (i.e. indigenous villagers) of the New Territories.

48. The objects of the Heung Yee Kuk are set out in section 9 of the Ordinance as follows:

"(a) to promote and develop mutual co-operation and understanding among the people of the New Territories;
(b) to promote and develop co-operation and understanding between the Government and the people of the New Territories;
(c) to advise the Government on social and economic developments in the interest of the welfare and prosperity of the people of the New Territories;
(d) to encourage the observance of all such customs and traditional usages of the people of the New Territories as are conducive to their welfare and to the preservation of a public morality; and
(e) to exercise such functions as they may be invited to from time to time by the Governor."
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1,577,998 14,432,559 6,506
3,759 567,978 2,406
5,668 49,362 23,598
2,676 4,305 37,574
10,115 1,918 183,759
10,110 652 73,759
1,016 3,521 24,474
14,601 760 4,528
8,342 5,923
 
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