XCHRX CHEUNG SO CHUN v. THE SECRETARY FOR HOUSING

HCAL 338/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST NO. 338 OF 2000

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D E C I S I O N

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1. This is the decision on the ex parte application for leave to apply for judicial review. The Applicant is the administratrix of the former tenant (deceased) of a tenancy agreement entered into between the deceased tenant and the Housing Authority.

2. On 31 July 1999, the Housing Authority served on the Applicant a notice pursuant to s. 19(1)(b) of the Housing Ordinance Cap. 283 notifying her that the tenancy would be terminated by 31 August 1999.

3. S. 19(1)(b) of Cap. 283 provides:

"Notwithstanding the terms thereof, the Authority may terminate any lease -

... by giving such notice to quit as may be provided for in the lease or one month's notice to quit, whichever is the greater."

4. The terms of the tenancy agreement included the following:

"II(13) The tenant agrees with the landlord as follows:

... Not to leave or cause or permit to be left any boxes, goods, articles or rubbish around the said store, or to cause any obstruction in the public area.

IV(3A) Notwithstanding clauses IV(1) and IV(3) hereof, if the Tenant fails to observe or comply with any of the agreement on his part herein contained the Landlord shall be entitled to terminate the Tenancy hereby created by giving to the Tenant at least one calendar month's notice in writing expiring at the end of any calendar month but without prejudice to the rights of the Landlord under this agreement."

5. In the affirmation filed herein by the Applicant on 25 April 2000, the Applicant deposed at paragraphs 6 to 8:

"On or about 7 February 1999, the Authority ... notified me some of our goods were placed at the unloading area which forms part of the public area. I immediately caused the said goods to be removed ... which was duly completed on about 9 February 1999 ...

On or about 3 March 1999, the Authority ... notified me that a few bags of our cement and sand were placed at the unloading area which forms part of the public area. I immediately caused the said bags ... to be duly removed ... on the same day ...

On or about 28 June 1999, the Authority notified me that a number of our goods and chattels were placed at the roof of the premises which forms part of the public area. Owing to the fact that unreasonably insufficient storage space had been provided to me by the Authority, I could only manage to cause the said goods and chattels to be removed ... on 10 August 1999 ..."

6. Further, the Applicant said at the paragraph 5 of her said affirmation:

"At all material times, be it before or after the issuance of the Notice, I had caused to be rectified each and every breach of covenant imposed on the deceased under the agreement as complained by the Authority (or by its agent) upon receipt of the same."

7. The Applicant was dissatisfied with the Housing Authority's decision to terminate the tenancy and on 9 August 1999 applied to appeal against that decision pursuant to s. 20 of Cap. 283 to the Appeal Panel and Appeal Tribunal appointed under s. 7A of Cap. 283. The Applicant's appeal was dismissed by the Appeal Tribunal on 7 March 2000.

8. The decision sought to be quashed by the Court is the one made by the Appeal Tribunal. The grounds put forward in support of this application are in essence:

(a) the Applicant was not given an adequate opportunity to be heard in her appeal in the Appeal Tribunal. This is said to have arisen because the Appeal Tribunal failed to notify the Applicant of her right to legal representation, to give her an opportunity to present her case or to take heed of her evidence or submissions;

(b) the Appeal Tribunal erred in law/fact in finding that the Applicant had failed to rectify her breaches of the tenancy;

(c) the Appeal Tribunal erred in holding that the Housing Authority was justified in serving the notice to quit notwithstanding the Applicant had rectified the said breaches;

(d) the Appeal Tribunal erred in law in failing to take into account or adequate account of factors justifying a relief against forfeiture.

9. The important point to note is that no complaint has been made herein against the decision of the Housing Authority to serve the notice to quit. Indeed, given the evidence filed by the Applicant, I do not consider a valid complaint can be made. According to her own affirmation (especially at paragraph 8), a breach of the tenancy has been committed (and was still being committed) at the time when the notice to quit was served. Once it is accepted by the party in breach of the terms of a tenancy that a breach justifying the termination of that tenancy has been committed, it does not lie in the mouth of that party to assert that somehow the innocent party is obliged to withdraw the notice to terminate that tenancy merely because the breach was subsequently "rectified". I therefore consider that there is no substance in the Applicant's ground (c) above.

10. In relation to the Applicant's grounds (a) to (b) and (d) above, because the Housing Authority was justified in giving the notice to quit, whether or not alleged procedural (or other) irregularities occurred during the hearing of the appeal in fact does not matter; the tenancy was already bought to the end by the notice to quit.

11. At today's' hearing, Mr Hung for the Applicant asked me to give the Applicant leave to amend the application to add the Housing Authority as a party and to include complaints against the notice to quit served by it. At the end, I do not consider that leave should be given because:

(a) the decision to serve the notice to quit was made on or before 31 July 1999 and was therefore more than 3 months prior to the date of this application, that is 25 April 2000;

(b) more importantly, as I concluded earlier, no valid complaint can be made against the decision of the Housing Authority for serving the said notice to quit.

12. For the above reasons, this application is refused.