LI KIM MING v. THE HONG KONG HOUSING AUTHORITY AND ANOTHER

HCAL 92/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 92 OF 2015

HCAL 107/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 107 OF 2015

HCAL 108/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 108 OF 2015

HCAL 109/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 109 OF 2015

HCAL 110/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 110 OF 2015

HCAL 111/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 111 OF 2015

________________________
 J U D G M E N T
________________________
 

A.    INTRODUCTION

1.  The applicants under these judicial reviews are all retired firemen or ambulance-men who previously served in the Hong Kong Fire Services Department (“FSD”).  They each commenced pre-retirement leave on dates between February 2011 and August 2011.

2.  During their service at the FSD, they were all allocated and have been residing with their respective families in FSD’s departmental quarters (“DQs”), with rent being charged at the concession rate (“the Civil Service Rate”) as laid down in relevant Civil Service Regulations.

3.  Prior to their respective retirements, they each made an application to the Housing Authority (“HA”)[1] for allocation of public rental housing under the Civil Service Public Housing Quota Scheme (“the Scheme”) in the 2012/2013 exercise.  Their applications were all unsuccessful and were thus respectively cancelled by the HA.  I refer to these decisions of the HA as the HA’s Decisions.[2]

4.  Thereafter, in light of the pending retirements, the Director of FSD (“the Director”)[3] respectively informed the applicants that they had to move out of the DQs by a deadline, and if they continued to occupy the respective DQs after the deadline, they would be required to pay the monthly market rental of the DQs until they have vacated the DQs.  For convenience, I refer these decisions of the Director as the Director’s Decisions.[4]

5.  In these judicial reviews, the applicants challenge the HA’s Decisions and the Director’s Decisions (collectively “the Decisions”).

6.  In the respective Amended Forms 86, the applicants have raised a number of grounds in support of the judicial reviews.  After a contested hearing, and upon the applicants’ then counsel’s clarification with the court of their case, this court granted leave to apply for judicial review only on the following grounds:

(1) Under HCAL 92, 107, 108, 110 and 111/2015:

(a) The Decisions frustrated the applicants’ legitimate expectation (“the Legitimate Expectation”) that FSD eligible officers occupying DQs would be allocated public housing under the Scheme at the latest through their last applications under the Scheme prior to retirements (“the Legitimate Expectation Ground”).

(b) The Decisions breached the policy (“the Policy”) of the HA and the FSD that FSD eligible officers occupying DQs would be allocated public housing under the Scheme prior to their retirements (“the Policy Ground”).

(c) In making the Decisions, the HA and the FSD failed to exercise their discretion to consider the merits of each of the applicants’ individual cases and circumstances (“the Failure to Exercise Discretion Ground”).

(2) Under HCAL 109/2015: the Failure to Exercise Discretion Ground.

7.  The applicants ask for an order of certiorari to quash the Decisions.

8.  In relation to these judicial reviews, it must be reminded that:

(1) The court has refused to grant leave to challenge the Decisions on the grounds that they were in breach of the constitutional rights under Articles 100 and 102 of the Basic Law.[5]

(2) The applicants’ then counsel (Mr Felix Ng) at the leave applications hearing also confirmed (rightly so in my view) that it was not the applicants’ case that they have any right to continue to stay in the DQs after retirement and after their last applications for public housing under the Scheme have been rejected.  It is also not their case that they could continue to re-apply under the Scheme even after retirement until they are allocated public housing.  Their case, as confirmed by Mr Ng, is only that, given the Legitimate Expectation and/or the Policy (the content of which is the same as the Legitimate Expectation), FSD eligible officers would be allocated public housing under the Scheme at the latest upon their last applications before retirements.

9.  The court therefore would only and strictly deal with these judicial reviews under the grounds where leave has been granted and on the basis as understood above.

10.  Mr Chong, the new counsel appearing for the applicants in this hearing, has also confirmed and accepted that he can only advance arguments based on the above grounds where leave has been granted.

11.  Before I deal with these grounds of judicial review, it would be necessary to set out the relevant context first.

B.   THE RELEVANT CONTEXT

12.  The relevant context and background leading to these judicial reviews are largely not controversial.  They are (as helpfully summarised in the HA and the Director’s skeletons submissions) as follows.

B1.   The HA’s role in managing public housing

13.  The HA is a statutory body established under the Housing Ordinance (Cap 283) (“the HO”).  The HA’s objective is laid down by section 4(1) of the HO as follows:

“the [HA] shall exercise its powers and discharge its duties under [the HO] so as to secure the provision of housing and such amenities ancillary thereto as the [HA] thinks fit for such kinds or classes of persons as the [HA] may, subject to approval of the Chief Executive, determine”

14.  In substance, the HA’s core role “is to provide affordable public housing to those who cannot afford private housing”.  See: Ho Choi Wan v Hong Kong Housing Authority (2005) 8 HKCFAR 628 at paragraph 4, per Li CJ.  Over the years, the HA’s core objective and role remains the provision of affordable public housing, primary public rental housing (“PRH”).[6]

15.  In these respects, there is no dispute that affordable public housing is highly sought after from many quarters in Hong Kong, and is increasingly scarce relative to demand.  The evidence shows that demand under the HA’s general waiting list for PRH is “huge and is continuously rising” and the needs in this regard are “pressing”.  Housing units at the HA’s disposal are highly valuable public resources.[7]

16.  The Scheme, which is germane to the present applications, is but one of the quotas managed within the HA’s annual allocation plan.

17.  The relevant details of the Scheme are these.

B2. The Scheme

B2.1. The Scheme in general

18.  The Scheme is a discretionary housing benefit introduced in 1961 to provide better opportunities for allocation of public housing to junior civil servants with lower income and rank and file staff of the disciplined services departments (“DSDs”).[8] The FSD is one of the DSDs, and thus FSD’s rank and file staffs are eligible to apply under the Scheme.

19.  The Scheme is not a benefit prescribed under civil servants’ conditions of service.  It is also not part of the terms of appointment agreed between the Government and the civil servants concerned.[9]  There is therefore no dispute that there is no contractual entitlement to the benefits provided under the Scheme.

20.  Quotas are set aside each year for the purpose of the Scheme and eligible civil servants may apply without having to comply with the usual income and assets limits applicable for PRH under the HA’s general waiting list and Home Ownership Scheme (“HOS”) applicants.  The quota is formally known as the Civil Service Public Housing Quota (“CSPHQ”)

21.  The quotas allocated to the Scheme each year are further subdivided into the General Quotas (“GQ”) and the Special Quotas (“SQ”).[10]

22.  The SQ was first introduced in the 1979/1980 Scheme exercise and is provided for disciplined services rank and file staff who are occupying DQs and are retiring in 10 years.

23.  The GQ is provided for serving civilian staff and other disciplined services staff not eligible for the SQ but with at least two years’ service.

24.  A Circular Memorandum (“CM”) would be issued by the Civil Service Bureau (“CSB”) during each year in which the Scheme operates to invite eligible civil servants to make an application under the Scheme.  The CM would be made known to eligible civil servants each year by all heads of departments and sets out, among others, the eligibility criteria of the Scheme and allocation arrangements for that year.

25.  In respect of eligible staff approaching retirement, as stated in the relevant CM, the cut-off date to determine the applicant’s eligibility has all along been set on 31 March of the previous year.  Thus, retirees still occupying DQs who retired on or after 1 April of the previous year are eligible to apply, whereas those who retired on or before 31 March of the previous year are ineligible to apply.  This is a practice that has remained the same since the 1980/1981 Scheme exercise.[11]

26.  Subject to the above, until retirement, eligible civil servants can re-apply under the Scheme even if they have made previous applications, as long as they have not been allocated public housing or taken up the allocation (if given) in the previous exercise.

B2.2. Quota setting the HA for each Scheme exercise

27.  The HA, on the recommendation of the Housing Department (“HD”), is responsible for setting the quota to be allocated under the Scheme for each annual exercise.  As stated in the introductory paragraph of the CMs: “The quota provision for [the Scheme] is subject to review and approval of the [HA] every year”.

28.  The sequence of steps leading exact quota to be allocated under the Scheme for each year are as follows:

(1) First, before the CSB issues its CM stating a particular quota for this constituents for a given year, it usually discusses the size of the proposed quota with the HA via the Transport and Housing Bureau (“THB”) acting as the HD’s policy bureau.

(2) Second, after discussion between the CSB and the THB, the CM are then issued with the quota in the Scheme expressly stated as subject to the HA’s approval.

(3) Third, the quotas proposed in the CM are then introduced in the PRH allocation plan for consideration of the HA’s Subsidised Housing Committee (“SHC”) in its determination of the year’s overall PRH allocation.

(4) Lastly, the SHC formally approves the PRH allocation plan for the year, covering all relevant categories of need, and setting out in a SHC decision for implementation.  To date, the SHC has in practice always approved the CSPHQ stated in the CM.

29.  As mentioned above, the quota provision under the Scheme is a matter for discussion between the CSB and the HA each year prior to the issue of the CM. The unchallenged evidence shows that no communication takes place between the HA and the Director or the FSD in respect of the quota size or related matters whether before or after the issue of the CM.[12]

30.  Insofar as the discussion between the CSB and the HA is concerned, typically, prior to the issue of the CM for each Scheme exercise:[13]

(1) Two joint council meetings (“JMs”) would be held between the CSB and staff side representatives of the Consultative Councils (representatives of the HD would also join such meetings) during which the CSB would inform the staff side representatives of the THB’s views for the upcoming Scheme exercise and the staff side representatives would provide their comments, views and concerns.

(2) The CSB would relay the comments, views and concerns of the Consultative Councils to the THB, which may include, among others, requests for the adjustment of quota size and distribution of quotas amongst different PRH estates.

(3) The THB and the HD would inform the CSB of the tentative quota allocation (subject to the endorsement of the HA in due course) and flat list (setting out distribution of PRH quotas amongst PRH estates) for the upcoming Scheme exercise, and the CSB would inform the staff side representatives of the same.

(4) The CSB would finally draw up the CMs (for GQ and SQ) for the upcoming Scheme exercise reflecting the tentative quota allocation; and upon the endorsement of the HA, the quota allocation would be confirmed.

31.  After the issue of the CM for each Scheme exercise, no further discussions would take place between the CSB and the HA, the HD or the THB concerning the size and distribution of quota.  The HA would generally approve and endorse the quota as proposed in the CM without any changes.[14]

32.  It thus can be seen that the final decision of quota allocation to the Scheme rests with the HA only.  The HA in deciding the size of the quota to be allocated takes into account many factors.  These include the competing demands for public housing, the HA’s primary role and priority objective to meet the pressing housing needs of low-income applicants on the HA’s general waiting list, and to ensure its key performance indicators are met, and the general demand for public housing of various re-housing categories.  It is noted that it has all along been the HA’s policy to allocate as many available flats as possible to the HA’s general waiting list so as to achieve the target waiting time of around three years for general applicants (“the Average Waiting Time”).[15]

33.  The uncontroverted evidence also shows that, despite the repeated concerns relayed by the CSB to the THB that the number of retirees has been increasing in recent years and the overall provision of quota would not be adequate to meet their demand, there has never been any adjustment to the quota size allocated to the Scheme from the 2006/2007 Scheme exercise up to 2012/2013 Scheme exercise.  In response to such concerns, the THB stated, among others, that the public housing quota under the Scheme could not be increased because:[16]

(1) PRH resources are limited and it is important to ensure that such limited resources would be allocated primarily to low-income families with the most pressing housing needs.

(2) There is an increasing number of applicants on the HA’s general waiting list for PRH and the HA has to meet its target of maintaining the Average Waiting Time for general applicants.

34.  As pointed out by the Director, the evidence also shows that there is clearly no correlation between the quota allocated to the Scheme and the number of retiring civil servants who were eligible to apply in each Scheme year in the past:[17]

(1) Since the inception of the Scheme in 1961, the quota of flats allocated to the Scheme generally ranged from 117 flats per year at the lowest to 3,500 flats per year at the highest, although the quota ranged from 1,500 to 1,700 in most years.

(2) There were two years (1964 and 1974) in which no quota was allocated to the Scheme at all, although the CSB, the HD or the THB cannot locate records showing the reason for this.  Also for the 1977/1978 and 1978/1979 Scheme exercises, as mentioned in the CMs for those years, due to a general shortfall in completion of new units, the HA was unable to allocate the full annual average of 1,500 units to the Scheme for those two years, and the quota allocated was 700 and 500 respectively.

(3) In recent years (ie, for the past seven Scheme exercises ie, the 2006/2007 exercise to the 2012/2013 exercise), the quota has maintained at around 1,500 flats per year (comprising 1,000 PRH flats and 500 HOS/SMS flats), despite the continuous and significant increase in the number of SQ applicants during these years.[18]

35.  This is also consistent with what has been stated in the document entitled “Civil Service Public Housing Quota” issued by the CSB in September 2013 at paragraph 19 that allocation of public housing to the Scheme is and always has been “subject to availability of resources” and the number of quota provided is “not pegged to the number of applicants or the number of retiring officers”.

B2.3. The allocation of PRH units under the Scheme

36.  The HD is responsible for processing the applications received for each Scheme year and to allocate PRH units to eligible applicants.  The FSD or the Director is not involved in the allocation process at all.

37.  The allocation of public housing to eligible applicants by the HD is carried out in accordance with the criteria and rules as to priority as set out in the CM.

38.  As stated in paragraph 19 of the CM, the allocation of PRH flats is determined by (i) priority of each applicant as provided for under paragraphs 9 - 10 of the CM; (ii) the choices of estates/districts; and (iii) availability of flats of suitable size, and the HD would draw up a list of allocation for each estate/district in accordance with the allocation priority of the eligible applicants and their choices of estates/districts.  Pursuant to paragraph 20 of the CM, each applicant is entitled to three choices of estates and is strongly advised to make all three choices to maximize their chances of success.

39.  In particular, paragraphs 9 - 10 of the CM for 2012/2013 Scheme (SQ) set out the allocation priority for different categories of eligible applicants as follows:

(1) Retirees occupying DQs (ie, corresponding with the applicants’ position) rank second in priority after widows/widowers and dependents of deceased disciplined services officers/retirees occupying DQs (see paragraph 9).

(2) Priority for eligible applicants within the same category will be determined by reference to the matters stated in paragraph 10: in respect of retirees occupying DQs, in order of their date of retirement.

40.  It is the HA’s position that the HD has no discretion in the allocation of units under the Scheme, as the process of allocation follows strict rules as to priority to which the applicants must be taken to have agreed when they applied under the Scheme. The personal circumstances of each individual applicant will not be considered in the allocation process.  In fact, the application forms for the Scheme do not require applicants to set out details of their individual personal circumstances including compassionate grounds for requiring an allocation of PRH.

41.  Indeed, it is also the HA’s position that to take into account the applicants’ personal circumstances would be wholly inconsistent with the allocation mechanism and priority rules stipulated under the CM, to which the applicants be taken to have agreed when they submitted their application.

B2.4. The present applicants and their relevant applications under the Scheme

42.  The applicants respectively joined the FSD in between 1976 and 1981 and each commenced pre-retirement leave on dates between February 2011 and August 2011.

43.  They were of the rank and file rank and have been residing in the DQs allocated by the FSD.  They are therefore eligible to apply under the Scheme under the SQs. They each made an application under the Scheme under the SQs in the 2012/2013 Scheme exercise before their respective retirements.

44.  As mentioned above, their applications under the Scheme were all unsuccessful and were respectively cancelled by the HA (ie, the HA’s Decisions).

45.  The HA has confirmed in evidence that the applicants’ applications for PRH under the 2012/2013 Scheme exercise had been processed strictly in accordance with the allocation mechanism as set out in the 2012/2013 CM.

46.  The HA has also explained the reasons why the applicants failed in their applications for PRH in the 2012/2013 Scheme exercise.  A significant factor being that they had each selected the most popular new PRH estates in urban areas (being Lai Ching Estate, Tak Long Estate and Cheung Sha Wan Estate) as their first choices.  The applicants were unsuccessful in their applications also because of the increase in the number of retiree applicants and the fact that they ranked lower in priority (by reference to date of retirement) than others who were allocated PRH for the same chosen estates.[19]

47.  Moreover, the quota approved for the 2012/2013 Scheme (and also for previous scheme exercises) had not been used up due to residual refurbished flats which the applicants (and other eligible applicants) did not choose.  Thus, it would appear that had the applicants selected the less popular estates (new flats in non-urban districts or refurbished flats in various districts), they would have been allocated a PRH flat in the 2012/2013 Scheme exercise.  This is demonstrated by the fact that there were applicants who ranked lower in the priority list than the applicants who were allocated a PRH flat under the 2012/2013 Scheme by reason that they had chosen less popular estates as their first choices.[20]

48.  Indeed, the popularity of the various PRH estates and availability of units in each of such estates have been specifically made known to the applicants in Appendix III and Appendix VI of the 2012/2013 CM (SQ).  Appendix III sets out the number of flats available under the SQ in each of the PRH estates for that Scheme exercise, whereas Appendix VI sets out the minimum length of service required for acquiring a quota for each estate/location under the previous Scheme exercise.  In various JMs, the CSB also reminded applicants to make use of all three choices and to choose refurbished flats in order to enhance their chances of obtaining an allocation of PRH under the Scheme.

49.  Upon the cancellation of their respective Scheme applications, and in light of the pending retirements, by way of the Director’s Decisions, the Director respectively informed the applicants that they had to move out of the DQs by a deadline, and if they continued to occupy the respective DQs after the deadline, they would be required to pay the monthly market rental of the DQs until they have vacated the DQs.

50.  In this respect, it is common ground that these applicants indeed represent the first batch of FSD eligible officers since the introduction of the Scheme who have not been allocated public housing under the Scheme upon their retirements. They are also therefore the first batch of FSD eligible officer who have been asked to vacate their DQs upon retirements without at the same time having already been allocated public housing.

51.  The applicants took out their leave applications seeking to judicially review the HA’s Decisions and the Director’s Decisions in June 2015, where partial leave was granted in August 2015.

C. THE GROUNDS OF JUDICIAL REVIEW

C1. HCAL 92, 107, 108, 110 and 111/2015

C1.1. The Legitimate Expectation Ground

52.  Central to this ground is the applicants’ contention that there is the Legitimate Expectation that eligible rank and file staffs of the FSD occupying DQs would be allocated public housing under the Scheme at the latest upon their last applications prior to retirement.

53.  The law on legitimate expectation is well established.  Generally, a legitimate expectation arises as a result of a promise, representation, practice or policy adopted or announced by or on behalf of government or a public authority. However, it has been emphasized that a representation or conduct relied upon to support a legitimate representation must be clear and unambiguous and the legitimate expectation must be reasonable.  See: Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR 1 at paragraphs 92, 94, 101 and 103.

54.  At the same time, it is recognised that there will be cases where a representation is reasonably susceptible of competing constructions, the correct approach is to accept the interpretation applied by the public authority, subject to the Wednesbury unreasonableness test.  Ng Siu Tung, supra, at paragraph 104.

55.  Where it is asserted that a certain “practice” gives rise to a legitimate expectation, the test is whether, on a fair understanding of the conduct relied upon, it would reasonably have been understood by those to whom it was directed to amount to a clear and unambiguous representation as to future conduct.  See: Auburn, Moffet and Sharland, Judicial Review Principles and Procedure (2013) at paragraph 19.37; R v Gaming Board of Great Britain, ex p Kingsley [1996] COD 241; Lam Kin Sum v Hong Kong Housing Authority [2005] 3 HKLRD 456 at paragraph 56, per Stock JA (as he then was).

56.  If the asserted legitimate expectation is established, the law requires that the legitimate expectation be properly taken into account by the public authority in its decision making process and been generally given effect to.  If effect is not given to the expectation, the decision-maker shall express its reasons so that they may be tested by a court when the decision is challenged.  The failure to do these would usually vitiate the decision: Ng Siu Tung, paragraphs 94 - 98.

57.  In the present cases, in support of this ground, Mr Chong for the applicants accepts (rightly so) that the allocation of any public housing under the Scheme does not form any contractual rights of the applicants’ employment terms and conditions.  In other words, the applicants do not as a matter of strict legal rights have any entitlement to the allocation of the public housing under the Scheme.

58.  However, counsel argues that the Legitimate Expectation is supported by the way the Scheme has in practice been carried out.  In this respect, the applicants primarily rely on the undisputed fact that before the present cases, there had never been any incident where FSD eligible retiring officers occupying DQs had not been allocated public housing under the Scheme upon their last applications before retirements.  This, Mr Chong emphasises amount to a long established, clear and unambiguous “practice” of the Scheme which gives rise to the clear representation by the FSD and/or the HA that eligible FSD staff occupying DQs would be allocated public housing under the Scheme at the latest before their retirement.

59.  With respect, I am unable to accept this submission.

60.  In my view, as rightly submitted by Mr Chan (together with Mr Kenneth Wong) (for the HA) and Mr Yu, SC (together with Ms Sara Tong) (for the Director), the mere fact that there has been no precedent case in the past that a FSD eligible retiring officer was not allocated public housing under the Scheme before retirement cannot amount to a clear and unambiguous practice and representation as to future entitlement of all retiring officers to public housing.

61.  It is obvious that in any given year, whether the quota allocated under the Scheme would be sufficient to meet all the demands of eligible officers who have made applications under the Scheme and whether certain applicants’ applications would be successful are dependent upon a combination of factors.  Relevant to the present considerations, these factors include, for example, the number of retiring officers in the relevant DSD in that year who have applied under the Scheme, the choices of estates and districts made by those applicants in that year and the priority ranked by a particular officer under the Scheme.  See the matters stated in sections B2.2 - 2.3 above.

62.  Thus, the fact that there had been no previous incidents of any retiring eligible officer’s being unsuccessful in their last Scheme applications is equally consistent with the position that it is simply a coincidental consequence of the interaction of all these factors in the past.

63.  This is underlined and demonstrated in the present cases: as the evidence shows, the quota allocated under the Scheme for the 2012/2013 Scheme exercise (where all the present applicants had made an application) in fact has not been used up.  The applicants were unsuccessful in their applications not because there is insufficient quota to meet the demand but is a result of the combination of the fact that they had picked those popular estates and districts in their choices for PRH under the Scheme applications, the increasing number of retiree applicants and the fact that they ranked lower in priority than others who were allocated PRH for the same chosen estates (see paragraphs 46 - 47 above).  It must be noted that when they made the applications, the applicants were also fully aware of the relatively more restrictive availability of these estates under the quota allocated under the Scheme, as expressly provided in the schedule attached to the relevant CM (see paragraph 48 above).

64.  Given that whether or not all the applications by retiring FSD eligible retiring officers (and other eligible retiring DSD officers) under the Scheme can be met would be a result dependent on the combination of many factors, and the said combinations vary in each individual year, I do not accept that on a fair understanding, the lack of any precedent unsuccessful case would reasonably have been objectively understood to amount to a clear and unambiguous representation as to future entitlement of eligible retiring applicants under the Scheme.

65.  Moreover, given that all the relevant documents setting out the Scheme and related to the Scheme applications have made it clear that allocation of public housing under the Scheme is discretionary and not guaranteed (a fact that Mr Chong has rightly accepted), it would require in my view very cogent and clear evidence to support the existence of such a representation as alleged by the applicants which shows the exact opposite.  The mere fact that there had been no previous relevant unsuccessful incidents before the present applications cannot constitute in my view such cogent and clear evidence to show the alleged representation.  Cf: R (Davis and another) v Revenue and Customs Commissioners [2011] 1 WLR 2625 at paragraph 49, per Lord Wilson SCJ.

66.  At the hearing, Mr Chong has also specifically drawn my attention to an answer given by the then Secretary for Civil Service (“the Secretary”) in the proceedings at the Legislative Council (“LegCo”) held on 18 October 1995 as evidence to support the existence of the alleged representation.  This relates to questions raised by some LegCo members about public housing for civil servants as to whether the Government had consulted the civil servants on the number of places in the quota provided each year under the Scheme when negotiating with the HD.  It is recorded in the official record of the proceedings that the Secretary in answer said, among others, these:[21]

“MRS ELIZABETH WONG(in Cantonese):Mr President, I would like to thank the Secretary for the Civil Service for making such a detailed reply. As a matter of fact, I know what many civil servant desire is simply that the Government fulfils its responsibility of providing adequate public housing to Hong Kong people, including the civil servants who are also a part of them. My follow-up question is: Has the Administration consulted the civil servants on the number of places in the quota provided each year? The Secretary mentioned that the Civil Service Branch often negotiates with the Housing Department. Have the civil servants been consulted as they are being affected; if not, why not?

SECRETARY FOR THE CIVIL SERVICE (in Cantonese): Mr President, I fully agree with the remarks made by Mrs Elizabeth WONG just now. That is what we should do and will definitely do. Regarding the question as to whether we have consulted the civil servants, the civil servants public housing quota was, in fact, on the agenda every time we met with the staff representatives. Their demand was to increase the quota every year, for instance, from 1 700 units to 1 900 units. We are fully aware of that. We were informed of such demand when we conducted the annual negotiation with the Housing Department. Of course, the possibility of meeting the demand hinges on a number of factors, which are out of my control. We have tried our best to secure 1 950 places. The quota has in fact been increased. But regrettably, among these 1 950 units, the number of rental units is less than that of last year, and the staff are dissatisfied with it. This has nothing to do with whether we consulted the staff or not, as we all along know what the staff ask for. In this respect, we are absolutely clear.

MR LEE CHEUK-YAN(in Cantonese):Mr President, just now the Secretary emphasized in his reply that there was no change of policy. I find it a bit misleading. As a matter of fact, the policy has been changed in the sense that the quota for public housing units is being reduced while that for Home Ownership Scheme (HOS) units is being expanded. I simply cannot understand why the Secretary still insisted that the policy had not been changed. What is even harder to understand is, if the Administration has consulted the staff as mentioned by the Secretary a moment ago, I believe it should know that the staff and currently requesting for an identical number of public housing units under the quota, rather than increasing the number from 1 700 to 1 900. In regard to maintaining the same number of public housing units under the quota, why did the Secretary not consult the staff and respect their demand?

SECRETARY FOR THE CIVIL SERVICE (in Cantonese): Mr President, I believe the most important point is whether we have withdrawn or changed such welfare. I am absolutely sure that such welfare has not been changed. The present change is made only in light of the current production of housing units and the various kinds of problems, such as the clearance of the Temporary Housing Areas, which confronted the Housing Authority. I think it is reasonable and acceptable for the Housing Authority to allocate more HOS units to make up for the shortfall if it thinks the production this year will not be able to meet the quota of 1 300 rental units for the civil servants. Although I understand that the staff would like to have more rental units, the HOS units do have their market too. As to the Home Purchase Loan Scheme I just mentioned, this kind of benefits was not available to the civil servants in the past. This is what we have fought for and secured. In regard to the question of whether this scheme has any market, I think we should not jump to a conclusion so soon.

Turning to negotiations with the staff representatives, we have definitely negotiated with them a number of times before. We should, however, understand that the number of ‘cakes’ is fixed. Very often we would still be unable to achieve our ideal target regardless of the numerous negotiations. After all, we have to strike a proper balance between the civil servants enjoying this welfare and the members of public queuing up in the general public housing waiting list. It is because civil servants are accorded priority in the allocation of public housing under this scheme. Moreover, Members should also bear in mind that a number of MOD 1 staff are given housing units after waiting for just seven years. What is more, the units are located in the urban areas. Besides, we only take into account their personal income, instead of their gross family income, in calculating their income. If we look at the existing income limit as well as the figures I just mentioned, we should know what is what.” (emphasis added)

67.  Mr Chong submits that when the Secretary said “civil servants are accorded priority in the allocation of public housing under this scheme”, it is a clear position made by the Government that, when allocating public housing, eligible civil servants under the Scheme would be given priority over the general public’s expectation.  This, counsel further says, is clear evidence of the Government’s representation that eligible applicants under the Scheme would eventually and certainly be allocated public housing.  This is so since there cannot be any other higher priority above the eligible civil servants if they already rank above the public.

68.  With respect, I do not agree.  In my view, reading that answer objectively in context, what it means is only that the Scheme itself is already affording priority to eligible civil servants over the public generally in applying for public housing, as they would be put under a different quota system instead of joining the HA’s general waiting list with the general public and they are not subject to the income and asset test, which is applicable to the general public applicants.  This answer is therefore not evidence to support the alleged representation that eligible applicants under the Scheme would certainly be allocated public housing.

69.  Finally, Mr Chong in his skeleton has made submissions which appear to suggest that the applicants have a right to keep reapplying under the Scheme until successful and to remain in the DQs until then.[22] These submissions are clearly contrary to the confirmation and concession made by the applicants’ then counsel at the hearing (see paragraph 6(2) above), not supported by evidence and in any event no leave has been granted to the applicants to argue them.[23]  Counsel has also advanced submissions at paragraphs 22 - 27 of the skeleton based on the doctrine of “estoppel by convention” to support these judicial review.  Such argument or ground is not even stated in the Amended Form 86 and also no leave is given to pursue it.  I would therefore not permit the applicants to advance these arguments as new or independent grounds for the judicial review.

70.  However, Mr Chong confirms at the hearing that he is not seeking to argue that the applicants have a right to keep reapplying under the Scheme after retirement and a right to remain in the DQs until then.  All that he is seeking to emphasise by reference to these matters is only to underline the undisputed fact that there has not been any precedent case where an eligible officer has not been allocated public housing before retirement, which in turn is the applicants’ underlying case of the Legitimate Expectation Ground.  Further, he is also only drawing an analogy with the doctrine of estoppel by convention to highlight his case on Legitimate Expectation.  He is not advancing any independent or new argument based on estoppel by convention.

71.  In light of the above scope of these submissions as clarified by Mr Chong, and given my above conclusion that the absence of a relevant precedent unsuccessful retiree application under the Scheme does not support the finding of the alleged clear and unambiguous representation, these parts of Mr Chong’s submissions also would not assist the applicants’ case on Legitimate Expectation any further.

72.  For all the above reasons, I do not accept there is sufficient evidence to show that there is an unambiguous and clear representation made by the HA or the FSD that all retiring applicants would definitely be allocated public housing at the latest in their last Scheme applications before retirements.

73.  On this basis alone, the applicants have failed to establish the Legitimate Expectation and I would reject this ground.

74.  Further, I also accept the respondents’ submissions that the alleged representation is in any event not reasonable and not legitimate.

75.  As said in Ng Siu Tung at paragraph 101, the reasonableness of the expectation depends, among others, upon the conduct of the relevant authority and what it has committed itself to, and what the applicants are entitled to expect bearing in mind any relevant considerations of policy and principle.

76.  In this respect, as submitted by Mr Chan, the court should be slow to elevate an authority’s alleged practice into an assurance where that practice is contrary to the authority’s own published materials: R (Davis and another), supra, at paragraph 49, per Lord Wilson SCJ.

77.  In the present cases, as submitted by Mr Yu and Mr Chan respectively, the legitimate expectation contended for by the applicants is clearly unreasonable and unrealistic for the following reasons:

(1) Quota numbers and allocation of quotas for each PRH estate would be fixed by the HD before the launch of each Scheme exercise, subject to approval by the HA.  The quota allocated and number of available PRH flats in each estate would be set out in the relevant CM to be issued.  Hence, the quotas in a particular Scheme exercise would be fixed before any applications from eligible applicants are received.  It is thus not possible for the HD or the CSB to anticipate precisely how many applications would be received for each Scheme exercise or which specific PRH estates each such applicant would choose before the issue of the CM.  After the CM is issued, the quota stated therein would generally be approved by the HA without modification.

(2) Even if the CSB or the HA is aware of the number of retiring and retired civil servants who may be eligible to apply in each exercise, the CSB or the HA has no control at all over the number of actual applications and the applicants’ choice of PRH estates.  It is thus impossible for the HD to set a quota for each PRH estate to ensure that all last-time applicants would be allocated a PRH unit.

(3) Further, it is impossible to guarantee that all retirees applying for the last time under the Scheme must be allocated a PRH unit according to their choices made, as available units in each PRH estate are necessarily limited.  If all last time retiree applicants choose the same most popular and sought after estates as their three choices, and if there are insufficient available units in such estates, it would be impossible for the HD to make any allocation to satisfy their choices.

(4) The alleged legitimate expectation contended for by the applicants would also be open to abuse.  For example:

(i) retirees applying for the last time under the Scheme to make only one choice of PRH estate (eg, choosing the most popular estate) and the HD would have to allocate them a unit; or

(ii) retirees may deliberately choose to apply only at the very last year before their eligibility expires such that they could occupy their DQs for as long as possible ie, until their two-month grace period runs out from the date on which their last Scheme application is cancelled.

78.  For these reasons, I would also reject the Legitimate Expectation Ground on the basis that the alleged expectation is not reasonable, unworkable and unrealistic.

C1.2. The Policy Ground

79.  It is the applicants’ case that the content of the Policy is in all respect and substance the same as the Legitimate Expectation.  The arguments raised in support of there being the Policy in guiding the HA and the FSD in carrying out and implementing the Scheme are the same as that for the Legitimate Expectation Ground.  For the same reasons I have explained above, there is no sufficient evidence to support the contention that the HA and the FSD had in place the Policy in carrying out or implementation of the Scheme.

80.  I therefore also reject the Policy Ground.

C1.3. The Failure to Exercise Discretion Ground

81.  As summarised in B2.3 above, the evidence shows that the allocation of public housing by the HD under the Scheme has always been strictly made in accordance with the rules set out in the relevant CM through the priority regime expressly set out therein.  There is in fact nothing provided in the Scheme to give the HD or HA discretion to consider personal or individual circumstances of the Scheme applicants.

82.  Further, the uncontroverted evidence is that the FSD has never been involved in the process of allocation and therefore also has no discretion to exercise in this respect.

83.  In the absence of any such express discretion provided in the Scheme, the applicants contend at paragraph 61 of the skeleton that the Government has a “duty” under the Scheme to consider and take into account the personal circumstances of individual applicants.  They even say at paragraph 62 that failure to consider personal circumstances constitute “breach of promise under the Scheme and the Policy” rendering the subject decisions “invalid”.

84.  However, these submissions are not supported by any evidence or authorities.  As observed by Mr Yu, it is unclear how this “duty” or “promise” is said to arise. In particular, it is pertinent to note that there is no evidence to show that personal circumstances of any of the Scheme applicants were ever taken into account in the past in processing applications under the Scheme, which is in any event wholly inconsistent with the clear provisions of the CM.

85.  In the premises, the applicants have failed to show that the HA or the FSD indeed retains a discretion as a matter of law or evidence to consider the personal circumstances of individual applicant to decide whether one should succeed in his application.  In the absence of any such discretion, if the HD were to do so for the present applicants, it would be in fact be unfair to other applicants who have applied under the Scheme.

86.  This ground of judicial review should also fail.

87.  However, in this respect, it may be worthwhile to mention that if any of the applicants consider that their personal circumstances warrant compassionate consideration, an application can be made under the Compassionate Re-housing Scheme of the HA (which is outside the Scheme), in which their personal circumstances would be relevant considerations.

C2. HCAL 109/2015

88.  As the applicant under HCAL 109/2015 has only the Failure to Exercise Discretion Ground to support his judicial review, I would similarly reject his application for the same reasons.

C3. Other observations

89.  I have for the above reasons refused all the grounds in these judicial reviews.

90.  However, in light of some of the contentions made in these applications, it may be necessary for me to also make the following observations.

91.  First, as I mentioned above, at the leave applications hearing, the applicants’ then counsel submitted that it was the applicants’ case (in support of the Legitimate Expectation and the Policy Grounds) that there had been some forms of “cooperation” or “arrangements” between the HA and the FSD in ensuring that the eligible retiree applicants would be somehow allocated public housing under the Scheme at the latest at the last attempt before their retirements.  It was the applicants’ position that, subject to seeing the respondents’ further evidence, the evidence which impliedly support such cooperation or arrangement was the fact that there had been no previous incidents where a retiree applicant would not be allocated public housing before retirement.

92.  In relation to this, for the same reason I have canvassed above, the lack of any relevant previous precedent of unsuccessful retiree application under the Scheme does notby itself support the existence of the alleged cooperation and arrangement. Further, the evidence filed shows exactly the opposite: the FSD does not have any material involvement, let alone any cooperation or arrangement with the HA, in approving the quota allocated under the Scheme as well as in processing the Scheme applications.  The objective evidence also shows that the annual quota allocated under the Scheme does not have any direct or linear relationship with the number or anticipated number of retirees of the DSDs generally and the FSD specifically in each year.  See paragraphs 29 to 35 above.

93.  Thus, as a matter of evidence, the applicants have also plainly failed to establish that there have been any cooperation or arrangements between the HA and the FSD to ensure that all the retiree applicants occupying DQs would be allocated public housing under the Scheme at the latest just before their retirements.

94.  Second, it is not in dispute that the applicant (Mr Li Kim Ming) under HCAL 92/2015 and the applicant (Mr Wong Kwan Leung) under HCAL 110/2015 had previously applied for and were allocated a Green Form Certificate quota for purchase of HOS or HOS Secondary Market Scheme (“SMS”) unit in the 2007/2008 and the 2008/2009 Scheme exercise respectively.  They however chose not to utilize the Green Form Certificates to proceed with the purchase.

95.  Therefore, by reason of the aforesaid allocations of HOS/SMS units to Mr Li and Mr Wong in the previous scheme exercises, it cannot be said that they had not been allocated public housing under the Scheme before their retirement.

96.  Both Mr Li and Mr Wong seek to explain in paragraph 6 of their 2^nd affirmations that they gave up the opportunity to purchase the flats because they realized that they were unable to afford any of the units.  However, since Mr Li and Mr Wong themselves chose to apply for HOS/SMS units (as opposed to PRH units) in the relevant Scheme year, they ought to have been satisfied of their own available financial resources at the time.

97.  In any event, this purported explanation cannot detract from the fact that they were offered public housing in the past.  Therefore, Mr Li and Mr Wong would in any event have no arguable case on the Legitimate Expectation and Policy Grounds, their position is the same as that of Mr Ng Ka Cheung in HCAL109/2015 (where leave to apply under those grounds was refused).

D. CONCLUSION

98.  The applicants have failed in all their grounds advanced in support of these judicial reviews.  I therefore would dismiss their applications.

99.  I further make an order nisi that costs of these applications be to the respondents to be taxed if not agreed, with certificate for two counsel for the Director.  Further, as the applicants seek to challenge specific decisions made respectively by the HA and the Director, and have for those purposes, made specific respective allegations against them, I am satisfied that the HA and the Director are justified in having separate representations and advancing separate submissions on their own.  As a result, each of them should therefore be entitled to have their own costs borne by the applicants.