吳欽中 v. 房屋署

HCAL 51/2024

[2024] HKCFI 215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 51 OF 2024

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D E C I S I O N

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A.  Introduction

1.  The Applicant was a public housing tenant, and his Form 86 in these proceedings was issued in Chinese on 4 January 2024.

2.  The Applicant has named the Housing Department as the proposed respondent to the application, and described the target of the application for leave to apply for judicial review as being:

The previous 24 visits and the subsequent 8 visits (which were forged) by the Housing Department resulting Housing Department demanding to recover the public housing flat from me.

3.  The relief claimed is for a return to his public housing flat. The space on the Form 86 for identifying the grounds on which relief is sought is left blank.

4.  The Applicant’s affirmation simply states that:

A document given to me by the Housing Department states that I had not been in Hong Kong for 113 days. As to another 24 visits, I was still hospitalised at the North District Hospital on 16 June. Following that, 8 visits made between July and November were all forged. The Housing Department demanded me to move out on 11 January.

Documents of Housing Department submitted.

5.  The documents submitted include a Summary of the Appeal Panel (Housing) Meeting Memorandum dated 17 October 2023, and a further Appeal Panel Meeting Memorandum. Both documents set out the background and brief description of the appeal brought by the Applicant against the Housing Authority’s termination of his tenancy at an address in Tin Wah Estate.

6.  One of the documents identifies that the Appeal Panel hearing would occur on 24 November 2023. From the two documents, the matters that were apparently to be canvassed at the appeal include that:

(1)  During a period of 1390 days between July 2019 and April 2023, travel records show that the Applicant had 590 arrivals and departures and that he had not stayed overnight in Hong Kong for a total of 1154 days.

(2)  His wife and young son were similarly absent from Hong Kong for overnight stays for a significant number of days in the same period, namely 1164 and 1111 days respectively.

(3)  The average daily water and electricity consumption was extremely low, and the meters recorded only intermittent and slight increases.

(4)  During the period of 113 days between 24 February and 16 June 2023, 24 surprise visits were made at different times of day, but no tenant or any authorised person was met on any of the visits.

(5)  On the visits, investigators found mail and flyers stacked in the letterbox of the flat at the lobby.

(6)  The Applicant has said that he and his wife had to stay in the Mainland for a long time to take care of the Applicant’s seriously ill father-in-law, and subsequently to deal with funeral matters, so that the Applicant could only come back to Hong Kong occasionally.

(7)  The Applicant has said that he is aged and suffers from chronic diseases, needing to have regular follow-up consultations in hospital. He and his wife have no jobs or income, and they cannot afford to rent private housing.

7.  Having considered the materials provided by the Applicant, I can deal with this application on paper. This is my Decision.

B.  No Public Law Grounds of Review

8.  As is evident from the above, the Form 86 does not identify any grounds on which the relief is sought. This is in breach of the mandatory requirement in RHC Order 53 rule 3(2), and is itself sufficient to lead to the dismissal of the application. It is not for the Court to seek to divine potential public law grounds of review on behalf of the Applicant who has failed to identify any.

C.  Alternative Remedy

9.  In any event, the apparent complaint is in relation to the Housing Authority’s demand to recover the Applicant’s public housing flat. But the Applicant has, and he has exercised, his right to appeal the Housing Authority’s termination of tenancy to the Appeal Panel (Housing). Therefore, the Applicant has pursued the alternative remedy available to him in relation to the Housing Authority’s decision.

D.  No Challenge to Appeal

10.  Neither the Form 86, nor the Applicant’s affirmation, nor the attachments identify whether the Appeal Panel has made any decision, and if so what decision was made. Nor is there any suggestion as to any public law error made by the Appeal Panel (if it has already made a decision).

11.  For the avoidance of doubt, I obviously make no comment on the matters apparently to have been canvassed at the appeal hearing – though, to give some context, I have identified some of them above.

E.  Result

12.  In the circumstances, there is no merit in the application as framed by the Form 86 and supporting affirmation.

13.  The Applicant has failed to identify any public law grounds of review to challenge the decision apparently sought to be challenged (namely the Housing Authority’s decision to terminate his tenancy), and in any event the Applicant has pursued the available and alternative remedy of an appeal from that decision. If the appeal has been decided, the Applicant has failed to identify any basis of seeking to challenge it.

14.  In the circumstances, the Applicant’s application for leave to apply for judicial review is dismissed. I make no order as to costs.