Yesterday morning was one of anxious waiting. Last Thursday afternoon, I got an urgent case. Some 24 members of a New Territories village had just had their right to vote at the local election of their village representative stripped away after a hearing on Wednesday. They had 4 days to apply for a review of the decision of the Revising Officer, a local magistrate in one of the New Territories magistracies. They did so and the hearing of the review was set yesterday morning.
At the previous hearing, a member of the opposite clan of the two-clan village opposed the names of members of their clan being put on the provisional register for electing their local village representive or head of the village. Last week, their own leader flew in specially from Glasgow, Scotland to defend the right of their clan members to continue to have their names on the local register of electors. But he lost. He came to us. I took some urgent instructions, immediately looked up the relevant legislation and subsidiary legislation or regulations because I had never done this kind of case before. Then based on my lightning fast reading, I gave him some quick advice on the kind of evidence that he should produce if he wished to have the decision of the magistrate reversed. Years of reading does pay. I just ran my eyes over the relevant legislation looking for key words and merely read parts which appeared to me to be relevant.
He followed my advice, returned on Friday morning with a draft "grounds for review" for advancing their own case. The grounds must be filed in court before 4.30 p.m. the same day. I asked him if he got a soft copy of the grounds so that I could work on the draft. He did not. That meant that I got to start from scratch to re-draft the entire grounds and could not make use of the pre-typed factual information contained in his draft. Then an idea occurred to us. Could he email the copy he had on his computer at home to us so that we could download it on to our own computer and then work on the emailed copy? He did so, using my personal computer to access his own account and sent the copy to my secretary. First hurdle overcome! But it was already about 11.45 a.m. I worked on the draft with our client standing right beside me to answer such questions on the relevant facts I felt I needed as and when I dictated the relevant changes to be made in the draft grounds and submissions to my secretary. I had nearly finished. Then my secretary hit one key and the whole draft was gone! I was really pissed. But being angry never solves any problems. I asked my client to resend his copy to my secretary's computer by using mine. He did so. I re-started doing the second draft. I was nearing the conclusion when the same thing happened again. It was lost for the second time! It was already 12. 45 p.m. There was little realistic chance of it being completed before lunch break at 1 p.m. My secretary asked if it was possible for us to continue after lunch. I told her the completed grounds must be filed before 4.30 p.m. at the registry in a New Territories magistracy at least an hour's journey from our office taking the fastest mode of transport. She knew she could not take her lunch break at the usual hours. The draft had to be done a third time. Another case of "more haste, less speed"" (愈急愈見鬼")! This time, I asked my secretary to copy the emailed copy of the draft to her own computer and save it as a separate word document first before we work on the saved document instead of the original emailed copy. We managed to finish everything, including photocopying the bundles of exhibits to be attached to the grounds and skeleton submissions by 2.15 p.m. But it was not perfect. It never is. I felt I needed further documentary evidence and told our client to look for them over the weekend and to bring them to me once he found them. He promised. I breathed a sigh of relief. Our client disappeared with the grounds for review together with the copies of all the documentary exhibits. He had to rush to file them before the court registry closed.
Saturday morning, I telephoned my clients' repesentative again and asked him if he managed to find any further evidence. He said he did. I told him to make copies and bring them to me Monday morning. He told me then he went to the wrong registry Friday afternoon and that he was really lucky that we gave him the documents at 2.15 p.m. because he still got time to rush to the right court registry!
I was at the magistracy before 9 a.m. yesterday and spent the time going through the evidence and the relevant law, jotting down in point form the kind of arguments I would later use. Hearing was to begin at 9.30 .m. At about 9.15 a.m. Two persons appeared, a young man and a young woman both dressed in black and the man in tie and all. I thought they might be the lawyers for the other side. I introduced myself. But it turned out that they were merely representatives from the Home Affairs Department. Their department is responsible for compiling the relevant provisional and final register of voters. Under the law, any disputes on who is entitled to vote and who is not must be fully and finally settled before 5th October every year when the register would close for that year. I asked them if they were prepared to stand by what they submitted to the Court at the previous hearing if needed. They said they had no changes to their previous submission and evidence. I felt resassured. Then my assistants arrived. I briefed them on what I was going to do.
About 9.15 a.m., our clients appeared and their representative told me that he had done everything I told him to and brought back the documents required plus some other documents which he did not tell me about on Saturday. I told him that we might have to ask the court for leave to introduce such documents because they ought to have been given to the court last Friday and not at the last minute yesterday. Then I took him into the witness room because I did not want his opponents who were sitting just 6 feet from me on the seats in the waiting area outside of the court room to hear what I was about to tell our client. I outlined my arguments and the kind of points that I wished to urge on their behalf before the magistrate. He said he had full confidence in me. I told him that his weakest point on the papers before the court was that he did not have any direct evidence that his ancestors were already inhabitants of their own particular village back in 1898 and if he were going he lose, he might lose on that point but I told him that I would do my best to urge the magistrate to accept the secondary evidence going back only to the 1930s. I also told him that he might also lose on some other points which his opponent did not even mention in their notice of objection but which I hope the trial magistrate acting as the "revising officer of the electoral register" might not bring up on his own initiative. I told him that if that other point were brought up, I was quite sure he would definitely lose because he simply had no evidence to support that his family members fulfilled the other relevant statuory requirements. But then, as his lawyers, I would certainly not draw attention of the other side to that point myself and that I would fight his case on the basis of the case as it was in the court records at that time.
We entered the court room. I talked to the magistrate's clerk and asked her to place the new evidence in the magistrate's file. The case opened. I apologised for the last minute submission of the further evidence. I made my submissions. I did my best to present our clients' case. I told the magistrate that my clients were honest. They even admitted that they did not have any direct evidence that their ancestors were already villagers of their village back in 1898 but only oral double-hearsay evidence but that there were other very strong secondary evidence they are descendants from some one who was already at that village back in 1898 and that previous challenges by their opponents back in 2006 and 2009 had been unsuccessful and that although theoretically the trial magistrate ought to examine the evidence anew every time some one challenges the status of an elector on the current register, such affirmation of their status by their brothers on the bench, whilst not legally binding on him, should be taken into account and also the fact that their parent had been a vice village representative for more than 20 years although in law, a village representative needed not be an inhabitant of the relevant village and further that there were very strong evidence that all the children were born at the place of shown on a photograph of their shop which had been operating there since the 1930s until the building was torn down in the 1980s and there was also evidence in the form of marriage certificate stating clearly the names of the parents of our clients' parents establishing their link to their grandparents whom our clients say had been around as far back as 1898. Then the other side produced a statutory declaration from their 92-year-old parent to the effect that our clients' parents only first appeared in the village in the late 1930s and that prior thereto they had never seen any of our client's parents nor any of their other relatives. I submitted that that was merely a bare assertion and that the declarant did not appear in court to be cross-examined as to his credibility or the reliability of his memory and asked the magistrate attach little or no weight to it and in particular, bearing in mind the history of continuous disputes between the two families, that there were very strong grounds to believe that that kind of statutory declaration of bare uncorroborated assertion was made by someone with a very strong political motive to take away the rights of our clients to vote at their village election and in particular the magistrate should take into account an earlier meeting between the members of the two family mediated by the Department of Home Affairs in which the opposers affirmed the status of our clients as legitimate voters. I submitted that they are either the direct descendants of some one who had already been there since 1898 or not. They could be a legitimate descendant the day before yesterday, not a descendent yesterday, again descendant today and not a descendant tomorrow. Facts do not change by virtue of what people allege about them. They are either true or false, once and for all. I urged the magistrate to accept the very strong secondary evidence. Of course, I made various other submssions in regard to the other supporting evidence.
The magistrate then adjourned the case to 12.30 p.m. for a judgement. However, shortly before the hearing resumed, our client brought in some fresh evidence in the form of a statement made by his 92 year old father back in 2006 before he died for use in the 2006 proceedings. The statement was to the effect that his own parent ( our clients' great grand parents) came from Wei Yeung, China to the old Tai Po Market before the British took over the town. etc. I told my clients' representative that that was really too late but still I would try to ask for leave to introduce such evidence from the court. I did so. But the magistrate disallowed it. I think I have an idea why. He had already made up his mind that our clients would win! Allowing such evidence to go in at the very last minute when he was already all set to pronounce judgement in our favour will only give the other side a possible ground of appeal later. He felt he already had what he needed to award a judgement in our clients' favor.
Needless to say, our clients were extremely happy at the result. Their representative said that perhaps he was really blessed by his ancestors that he did not come up with the relevant evidence by himself at the hearing last week but merely told the magistrate then that he had no evidence because he was under the impression that the court was already in posession of the results of the two previous challenges and rulings and would automatically rely on them. He said that had he done so, he might still have lost because he simply did not know how to argue and would have "wasted" all the evidence. It would have been the worse for his family because then, he would no longer have a second chance to present such evidence the way I did and moreover would have allowed the other side more time to introduce other evidence in rebuttal. He repeated the old Chinese sayings,"塞翁失馬，焉知非福" or "錯有錯着" ("a blessing in diguise). At the lunch at the restaurant nearby, he tried to shove some money into my hands under the table. I refused to take it. He insisted that it was just a token of appreciation. He felt so grateful! I told him it was not my habit to take money that way. I told him that although we merely charged them a concessronary fee, it was an agreed fee and we already got paid. He invited me to visit him in UK. He is the head of the biggest Chinese school in the UK. Now I got another friend.
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